STATE OF NEW JERSEY VS. M.J.M. (07-08-1970, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


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  •                                       RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0179-16T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    M.J.M.,
    Defendant-Appellant.
    ______________________________
    Argued September 13, 2018 – Decided February 27, 2019
    Before Judges Koblitz, Ostrer and Currier.
    On appeal from Superior Court of New Jersey, Law
    Division, Monmouth County, Indictment No. 07-08-
    1970.
    John Vincent Saykanic argued the cause for appellant.
    Carey J. Huff, Assistant Prosecutor, argued the cause
    for respondent (Christopher J. Gramiccioni, Monmouth
    County Prosecutor, attorney; Cary J. Huff, of counsel
    and on the brief).
    PER CURIAM
    This case returns to us after remand and a new trial. See State v. M.M.
    (M.M. I), No. A-2747-09 (App. Div. Nov. 9, 2012) (slip op.). At retrial, a jury
    convicted defendant of sexually assaulting and endangering his then-minor
    daughter multiple times. Defendant challenges the sufficiency of evidence and
    raises, mostly as plain error, multiple claims of evidentiary error and
    prosecutorial misconduct. Having reviewed his arguments in light of the record
    and applicable principles of law, we affirm.
    I.
    We assume the reader's familiarity with the principal facts in this case.
    The State alleged that between 2002 and 2007, defendant sexually assaulted his
    daughter, N.M., who was then between ten and fifteen years old. The alleged
    assaults began with defendant regularly touching N.M.'s clothed breasts, vagina,
    and buttocks. By 2007, it escalated to his penetrating her with his penis and
    fingers multiple times. The State also alleged defendant threatened her with
    violence if she reported the abuse. N.M. lived with her parents and two older
    sisters.
    After a 2009 trial, the jury convicted defendant and the trial court
    sentenced him to an aggregate twelve-year term. He appealed, and we reversed
    and remanded for a new trial. We relied on the cumulative impact of three
    A-0179-16T3
    2
    errors: the admission of N.M.'s hearsay statements to a teacher and vice -
    principal; the prosecutor's improper vouching for N.M. and a police witness; and
    the placement of a screen that blocked the public from viewing N.M.'s in -court
    testimony. M.M. I, slip op. at 11.
    At the 2016 retrial, the State's principal witness was N.M., who was then
    twenty-four.   Also testifying were her older sister; her school guidance
    counselor to whom she first disclosed the assaults; a sexual assault nurse
    examiner (SANE nurse), who testified as a fact and expert witness; and the
    psychologist who treated her after her disclosure. The State read the 2009
    testimony of N.M.'s mother, who died in 2010, and played most of defendant's
    lengthy, video-recorded custodial interview, in which he denied the assaults.
    After the State rested, the court denied defendant's motion for acquittal.
    Defendant called character witnesses, including his father, but did not
    testify himself. He also called a SANE nurse, Karen Nittoli, as an expert in
    female anatomy and types of physical changes indicative of sexual assault.
    The jury convicted defendant of: first-degree aggravated sexual assault,
    N.J.S.A. 2C:14-2(a)(2) (Count One); second-degree sexual assault, N.J.S.A.
    2C:14-2(b) (Count Two); second-degree endangering the welfare of a child,
    N.J.S.A. 2C:24-4(a) (Count Three); third-degree aggravated criminal sexual
    A-0179-16T3
    3
    contact, N.J.S.A. 2C:14-3(a) (Count Four); and acquitted defendant of third-
    degree terroristic threats, N.J.S.A. 2C:12-3(a) (Count Five). The trial court
    sentenced defendant to an aggregate twelve-year term of imprisonment subject
    to the No Early Release Act, N.J.S.A. 2C:43-7.2, and parole supervision for life
    pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23.
    On appeal, defendant presents the following arguments.
    I.  THE TRIAL COURT ERRED IN PERMITTING
    THE STATE TO UTILIZE THE SANE NURSE
    WALKER TO OPINE IMPROPERLY AS TO THE
    PRESENCE OR ABSENCE OF A HYMEN; THIS
    PROSECUTORIAL    MISCONDUCT      DENIED
    DEFENDANT A FAIR TRIAL AND DUE PROCESS
    OF LAW.
    II.  THE TRIAL COURT ERRED IN PERMITTING
    THE PROSECUTOR TO CROSS-EXAMINE (AND
    DISCREDIT) THE DEFENSE EXPERT NITTOLI
    WITH A HEARSAY MAGAZINE ARTICLE; THIS
    PROSECUTORIAL MISCONDUCT DEPRIVED
    DEFENDANT OF HIS DUE PROCESS RIGHT TO A
    FAIR TRIAL.
    III. THE IMPROPER STATE'S OPENING AND
    CLOSING STATEMENTS CONSTITUTE AND ARE
    A PART OF A PATTERN OF PROSECUTORIAL
    MISCONDUCT WHICH DEPRIVED DEFENDANT
    OF HIS SIXTH AMENDMENT RIGHT TO A FAIR
    TRIAL AND FOURTEENTH AMENDMENT DUE
    PROCESS RIGHT AND STATE CONSTITUTIONAL
    RIGHT TO A FAIR TRIAL; THE PROSECUTOR I)
    IMPROPERLY SHIFTED THE BURDEN OF PROOF
    IN HER OPENING STATEMENT; II) IMPROPERLY
    A-0179-16T3
    4
    DENIGRATED THE DEFENSE AND DEFENDANT;
    III) IMPROPERLY VOUCHED FOR AND
    BOLSTERED THE CREDIBILITY OF N.M.; AND
    IV) IMPROPERLY MISSTATED THE RECORD.
    IV. THE    TRIAL    COURT    IMPROPERLY
    PREVENTED    DEFENSE     COUNSEL   FROM
    UTILIZING THE WORD "PSYCHOSIS" DURING
    SUMMATION IN VIOLATION OF HIS DUE
    PROCESS RIGHT TO A FAIR TRIAL.
    V.  THE CUMULATIVE IMPACT OF THE
    NUMEROUS ERRORS AND MISCONDUCT BY
    BOTH THE TRIAL COURT AND PROSECUTOR
    DEPRIVED DEFENDANT OF HIS DUE PROCESS
    RIGHT TO A FAIR TRIAL.
    VI. THE COURT BELOW ERRED IN DENYING
    THE MOTION FOR JUDGMENT OF ACQUITTAL
    AS TO EACH COUNT AS THE STATE DID NOT
    PROVE DEFENDANT'S GUILT BEYOND A
    REASONABLE DOUBT; THE DEFENDANT'S
    CONVICTIONS ARE CONTRARY TO THE
    FOURTEENTH AMENDMENT OF THE UNITED
    STATES CONSTITUTION AND NEW JERSEY
    STATE CONSTITUTION.
    VII. THE CONVICTIONS ARE AGAINST THE
    WEIGHT OF THE EVIDENCE AND IS CONTRARY
    TO THE FOURTEENTH AMENDMENT OF THE
    UNITED STATES CONSTITUTION AND NEW
    JERSEY STATE CONSTITUTION.
    VIII. THE ADMISSION OF PHOTOGRAPHS
    DEPICTING ALLEGED INJURIES TO N.M.
    DEPRIVED THE DEFENDANT OF HIS DUE
    PROCESS RIGHT TO A FAIR TRIAL AS THE
    PROBATIVE VALUE WAS SUBSTANTIALLY
    A-0179-16T3
    5
    OUTWEIGHED          BY    THE     RISK    OF    UNDUE
    PREJUDICE.
    II.
    The issue arose at trial whether the state of N.M.'s anatomy – specifically,
    that she had an intact hymen – tended to disprove her claim that her father
    repeatedly engaged in penile-vaginal penetration. Defendant argues, as plain
    error: (1) the State's expert lacked the qualifications and basis to opine that an
    intact hymen is irrelevant in determining whether a woman was sexually
    assaulted; and (2) the State should not have been permitted to confront the
    defense expert, who took the contrary view, with a journal article that challenged
    her position. We are unpersuaded.
    A.
    Although the State initially called the SANE nurse who examined N.M.
    as a fact witness, the State elicited her education and training at some length.
    Molly Walker, R.N., testified she holds a B.S. from Vanderbilt University in
    nursing; an M.S. from the University of Pennsylvania; and licenses to practice
    nursing and midwifery.     She testified she was a primary care provider of
    obstetrical and gynecological care of women and performed thousands of
    gynecological exams. She obtained training and certification to be a SANE
    A-0179-16T3
    6
    nurse in 2002, and thereafter as a pediatric SANE nurse.        She personally
    performed 145 examinations of alleged sexual assault victims.
    She testified that, in examining N.M., she found irritation on the labia
    minora and redness and split skin in the posterior fouchette. There were no
    injuries to the vaginal canal or cervix. Walker said it was not her role to
    determine the cause of any injuries or conditions.
    On cross-examination, defense counsel elicited Walker's finding that
    N.M.'s hymen was intact at "two o'clock" and "nine o'clock," referring to
    positions around the vaginal opening. That prompted the State to ask on redirect
    whether the presence of a hymen contraindicated sexual activity. The defense
    objected that the question called for an expert opinion. The court agreed. The
    State then offered Walker as an expert, based on the qualifications already
    elicited. Defense counsel conducted a short additional voir dire, but did not
    object to Walker's qualifications. The court then qualified her to testify as an
    expert in female genital anatomy.
    Upon redirect, she testified that the presence of an intact or a partially
    intact hymen does not mean that a woman has never had sexual intercourse. On
    re-cross, she stated that the condition of the hymen was irrelevant to whether
    someone was "sexually active."
    A-0179-16T3
    7
    Defendant called another SANE nurse, Karen Lynn Nittoli, R.N., to
    counter Walker's opinion. A registered nurse, Nittoli helped establish the sexual
    assault response team in Morris County, and participated in or supervised 300
    to 400 sexual assault cases. Without objection, the court qualified her as an
    expert in "female anatomy and types of physical changes indicative of sexual
    assault."
    Though she agreed with Walker's physical observations, she disagreed
    about their significance.     Nittoli disputed that the evidence supported the
    conclusion that N.M. was assaulted.            In particular, Nittoli stated that the
    condition of the hymen is relevant to determining whether someone was sexually
    assaulted or sexually active, and she would expect the hymen of a fifteen-year-
    old who had intercourse repeatedly not to be intact. She also stated that the
    irritation could have been caused by masturbation, which N.M. admitted doing,
    tight pants, or other benign activities.
    On cross-examination, Nittoli conceded that, though improbable, it was
    not impossible that a person with an intact hymen like N.M.'s could have "had
    sex." The State confronted Nittoli with a 2004 article from Pediatrics, the
    journal of the American Academy of Pediatrics, which Nittoli acknowledged
    was a renowned authority on pediatric care. Entitled "Normal Does Not Mean
    A-0179-16T3
    8
    Nothing Happened," the article reported a study of thirty-six pregnant
    "adolescent girls who presented for sexual abuse evaluations . . . [which were]
    performed to determine the presence or absence of genital findings that indicate
    penetrating trauma." Per the article, the study found that only two of the thirty -
    six test subjects "had genital changes that were diagnostic of penetrating
    trauma." The article concluded that "[m]edical, legal, and social professionals
    as well as lay jurors need to understand that, in most cases of child sexual abuse,
    there will be few if any clinical findings that are diagnostic of penetrating
    trauma."
    Nittoli said she was surprised by the finding that only two of the thirty-
    six girls studied had definitive findings of penetration. She also disagreed with
    a quotation from the article that "there will be few, if any, clinical findings that
    are diagnostic of penetrating trauma." Nittoli also rejected the assertio n, as
    summarized by the prosecutor, "that even in the face of clear genital contact,
    i.e.[,] pregnancy, the examination may be nonspecific or 'normal.'" She insisted
    that it was improbable that a young woman would have an intact hymen after
    multiple incidents of penile-vaginal penetration.
    A-0179-16T3
    9
    B.
    We review the trial court's evidentiary rulings for an abuse of discretion,
    mindful that we may "not substitute [our] own judgment for that of the trial
    court, unless 'the trial court's ruling was so wide of the mark that a manifest
    denial of justice resulted.'" State v. Terrel, 
    452 N.J. Super. 226
    , 248 (App. Div.
    2016) (quoting State v. Kuropchak, 
    221 N.J. 368
    , 385 (2015)). Generally, we
    leave the qualification of expert witnesses to the trial court's discretion. 
    Ibid. Since defendant specifically
    waived any objection to Walker's qualifications as
    an expert, he must demonstrate plain error, that is, error that is "clearly capable
    of producing an unjust result." R. 2:10-2.
    We discern no error, let alone plain error, in the court's decision to qualify
    Walker. Expert opinion testimony is admissible if "the expert is qualified by
    knowledge, skill, experience, training, or education." State v. Moore, 
    122 N.J. 420
    , 458-59 (1991). Walker had extensive training and experience in providing
    primary gynecological care and examining alleged victims of sexual ass ault.
    The trial court did not err in permitting her to testify as an expert on female
    genital anatomy.
    Nor are we obliged to reach defendant's argument that the court erred in
    permitting Walker to opine about the significance of an intact hymen because it
    A-0179-16T3
    10
    lacked a sufficient basis. An expert's opinion must be grounded in "facts or data
    derived from (1) the expert's personal observations, or (2) evidence admitted at
    the trial, or (3) data relied upon by the expert which is not necessarily admissible
    in evidence but which is the type of data normally relied upon by experts." State
    v. Townsend, 
    186 N.J. 473
    , 494 (2006); see N.J.R.E. 703. An expert is required
    to "give the why and wherefore" of his or her opinion, rather than a bare
    conclusion. Pomerantz Paper Corp. v. New Cmty. Corp., 
    207 N.J. 344
    , 372
    (2011).
    We recognize that Walker did not explain her conclusion that an intact
    hymen did not disprove a sexual assault. However, defense counsel did not
    object to Walker's testimony. Apparently, the approach was strategic, to avoid
    giving Walker the opportunity to strengthen her opinion, which contradicted
    what defense counsel believed was common thinking. See State v. Marshall,
    
    123 N.J. 1
    , 93 (1991) (stating that "except in the most extreme cases, strategic
    decisions made by defense counsel will not present grounds for reversal on
    appeal").
    Defense counsel declined to explore the basis of Walker's conclusion in
    cross-examination, apparently for the same reason he declined to object.
    However, the place to challenge an expert's testimony is at trial. See Townsend
    A-0179-16T3
    11
    v. Pierre, 
    221 N.J. 36
    , 55 (2015) (stating that a party may always subject an
    expert to vigorous cross-examination to challenge the basis of an opinion)
    (citing State v. Harvey, 
    151 N.J. 117
    , 277 (1997)).
    We therefore deem the argument that Walker's opinion lacked basis to
    have been waived. Furthermore, we are not obliged to reach an issue not raised
    before the trial court that does not affect the court's jurisdiction or a matter of
    great public interest. Nieder v. Royal Indem. Ins. Co., 
    62 N.J. 229
    , 234 (1973).
    Our Supreme Court has "insisted that, in opposing the admission of
    evidence a litigant must 'make known his position to the end that the trial court
    may consciously rule upon it.'"        State v. Robinson, 
    200 N.J. 1
    , 19 (2009)
    (quoting State v. Abbott, 
    36 N.J. 63
    , 76 (1961)). Absent that requirement,
    counsel would have "'an incentive . . . for acquiescing through silence . . . and,
    when [rulings] can no longer be corrected at the trial level, unveiling them as
    new weapons on appeal.'" 
    Ibid. (quoting Frank M.
    Coffin, On Appeal: Courts,
    Lawyering, and Judging 84-85 (W.W. Norton & Co. 1994)). While we retain
    the "authority to 'notice plain error not brought to the attention of the trial
    court[,]' provided it is 'in the interests of justice' to do so," that authority is "not
    intended to supplant the obvious need to create a complete record and to preserve
    issues for appeal." 
    Id. at 20
    (quoting R. 2:10-2). Otherwise, the "interests of
    A-0179-16T3
    12
    justice" standard of Rule 2:10-2 would "render as mere surplusage the
    overarching requirement that matters be explored first and fully before the trial
    court." 
    Ibid. In any event,
    we discern no unjust result. We have no doubt that had an
    objection been raised, the State would have laid the appropriate foundation for
    Walker's opinion by eliciting the why and wherefore of her conclusion,
    grounded in her academic training and her personal observations in the course
    of hundreds of OB-GYN and sexual assault examinations.
    C.
    We also reject defendant's argument that the State improperly introduced
    the Pediatrics journal article while cross-examining Nittoli. As defense counsel
    did not object at trial, we apply a plain error analysis here as well. However, no
    error occurred, as the court properly admitted the article under the "learned
    treatises" exception to the hearsay rule. N.J.R.E. 803(c)(18).
    In cross-examining an expert witness, a party may introduce a hearsay
    statement "contained in published treatises, periodicals, or pamphlets on a
    subject of history, medicine, or other science or art," that is "established as a
    reliable authority by testimony or by judicial notice." N.J.R.E. 803(c)(18).
    A-0179-16T3
    13
    Counsel may not submit the statement as an exhibit but may read it into
    evidence. 
    Ibid. While defendant now
    stridently challenges the validity and applicability
    of the study reported in the Pediatrics article, Nittoli conceded that Pediatrics
    was an authoritative source. Defense counsel had the opportunity to elicit
    limitations or shortcomings in the article through redirect of his expert or
    presenting articles with a contrary view. He did not do so. 1 He may not relitigate
    his case on appeal.     In any event, his arguments address not the article's
    admissibility but its weight. 2
    1
    Notably, on appeal, defendant does not cite any scientific authority for his
    contentions about female anatomy, although the alleged correlation between
    physical findings and abuse or non-abuse is an area of scientific discourse. See,
    e.g., Lindstadt v. Keane, 
    239 F.3d 191
    , 201-02 (2d Cir. 2001) (citing articles).
    In particular, he contends that cases of intact hymens following sexual
    intercourse occur only with limited penetration of the vaginal vestibule, but that
    N.M. alleged "full penile penetration." However, he references no authoritative
    source to support his scientific premise, nor N.M.'s testimony to support his
    factual contention as to the extent of defendant's penetration of N.M.
    2
    We note that other experts have expressed a similar view. See, e.g., People v.
    Brown, 
    883 P.2d 949
    , 953 (Cal. 1994) (noting expert's opinion "that 60 percent
    of molested children do not demonstrate 'any physical findings' of molestation");
    Collins v. Commonwealth, 
    951 S.W.2d 569
    , 574 (Ky. 1997) (stating that trial
    court properly admitted expert's testimony that "it was not uncommon to still
    have a hymen" and that "approximately fifty percent of the sexually active
    women she examined retained a hymen").
    A-0179-16T3
    14
    III.
    We are also unpersuaded by defendant's claims of prosecutorial
    misconduct. Prosecutors "may comment on the facts shown by or reasonably to
    be inferred from the evidence."      State v. Carter, 
    91 N.J. 86
    , 125 (1982).
    However, a prosecutor may not make "inaccurate legal or factual assertions";
    refer to evidence not in the record; ridicule the defendant, defense counsel, or
    the defense's theory of the case; or suggest a police officer is believable because
    of his or her status. State v. Frost, 
    158 N.J. 76
    , 84-86 (1999). However, to
    warrant reversal, prosecutorial misconduct must be "so egregious that it
    deprived the defendant of a fair trial." 
    Id. at 83.
    In making this assessment, a
    reviewing court "must consider (1) whether defense counsel made timely and
    proper objections to the improper remarks; (2) whether the remarks were
    withdrawn promptly; and (3) whether the court ordered the remarks stricken
    from the record and instructed the jury to disregard them." 
    Ibid. Measured against this
    standard, we discern no basis to disturb the jury
    verdict for alleged prosecutorial misconduct.          Defendant contends the
    prosecutor's opening statement improperly placed the burden of proof on
    defendant. In fact, the prosecutor simply invited the jury to examine defendant's
    demeanor during his videotaped custodial interview, when he was informed of
    A-0179-16T3
    15
    N.M.'s allegations and asked to respond. Nonetheless, when defense counsel
    objected, the court swiftly instructed the jury, "It may be in the video, but I
    reiterate that the State bears the burden of proof. Defendants are presumed to
    be innocent. They don't need to prove anything. Go ahead." Although we are
    not convinced the prosecutor's remark shifted the burden, the court addressed
    any conceivable prejudice with its prompt instruction.
    Defendant also argues the State, in summation, denigrated defendant and
    his defense and misstated the record in various respects. However, we discern
    no misconduct.      Defense counsel raised no objections, except to a
    characterization of Walker's and Nittoli's testimony, which prompted an
    instruction that the jury must decide whom to believe and should not take the
    lawyer's statements as fact. Without reviewing every other allegation in detail,
    we note that the prosecutor fairly characterized the defense approach as urging
    the jury to "disregard everything [N.M.] said, throw it all out because she has
    mental issues. She's crazy." The prosecutor reasonably argued that the visual
    evidence of N.M.'s injuries was highly probative while defendant's attempt to
    explain N.M.'s injuries was implausible. Also, the prosecutor's minor mistake
    in stating that N.M.'s mother went to bed at 8:00 p.m., when the evidence showed
    A-0179-16T3
    16
    she went to bed at 9:00 p.m., had no great significance. The jury was instructed
    that they were the judges of the facts.
    IV.
    Defendant's remaining arguments warrant only brief comment.
    The trial court did not improperly prevent defense counsel in summation
    from using the term "psychosis" to describe N.M.'s psychological condition.
    Defendant relied on an out-of-court comment N.M. reportedly made to a medical
    professional describing the side effect of a medication. However, N.M. was not
    competent to assign a medical diagnosis to her symptoms. Although there was
    evidence that N.M. suffered from other emotional health problems, including
    depression and "conversion disorder," neither side introduced admissible
    evidence from an expert competent to diagnose N.M. as psychotic. See State v.
    Loftin, 
    146 N.J. 295
    , 347 (1996) (stating that "[t]he scope of defendant's
    summation . . . must not exceed the 'four corners of the evidence.'") (qu oting
    State v. Reynolds, 
    41 N.J. 163
    , 176 (1963)).
    We also reject defendant's argument that the cumulative effect of several
    trial court decisions denied him a fair trial. Notably, defendant does not cite any
    legal authority for his claim that the trial decisions were individually erroneous.
    A-0179-16T3
    17
    There can be no cumulative error without individual errors, let alone prejudicial
    ones. See State v. Weaver, 
    219 N.J. 131
    , 155 (2014).
    We note briefly that the court did not err in permitting the State to present,
    pursuant to N.J.R.E. 404(b), evidence of a cruise in Mexico that defendant took
    with N.M. and no other family members. N.M. testified that during that trip,
    defendant for the first time touched her under her clothing. Although the
    indictment did not charge his actions in Mexico, they were relevant to a material
    issue by demonstrating how defendant groomed N.M. for more intrusive acts.
    N.M. testified that after the Mexico trip, defendant's behavior escalated. See
    State v. Garrison, 
    228 N.J. 182
    , 197 (2017) (holding that the State may introduce
    evidence of an uncharged act of sexual assault on a child to show a defendant's
    "plan to further desensitize [the child] to sexual conduct so that he could
    continue to abuse her").
    Nor did the court err in admitting the prior trial testimony of N.M.'s
    mother, who had died before the retrial. The testimony was admissible under
    N.J.R.E. 804(b)(1)(A), which allows "[t]estimony given by a witness at a prior
    trial of the same or a different matter . . . if the party against whom the testimony
    is now offered had an opportunity and similar motive in the prior trial . . . to
    A-0179-16T3
    18
    develop the testimony by examination or cross-examination." Defendant had
    such an opportunity.
    The court also did not err in allowing a police officer to describe his lay
    opinion that N.M., shortly after she disclosed her father's abuse, did not seem
    "insane" or "not in touch with reality." The question did not call for a mental
    health diagnosis but for a lay opinion, akin to a lay opinion whether a person
    appeared intoxicated based on observable behaviors. See State v. McLean, 
    205 N.J. 438
    , 457 (2011).
    Finally, the court did not err in denying defendant's motion for a judgment
    of acquittal after the State rested. As the trial court properly found , after
    extending the State all favorable inferences, a jury could find guilt beyond a
    reasonable doubt based on N.M.'s testimony and the circumstantial evidence
    presented by other witnesses. See R. 3:18-1; State v. Williams, 
    218 N.J. 576
    ,
    593-94 (2014).
    As defendant did not move for a new trial after verdict, he did not preserve
    his additional argument that the convictions were against the weight of evidence.
    See R. 2:10-1; State v. Smith, 
    262 N.J. Super. 487
    , 511 (App. Div. 1993)
    (holding an appellate court may refuse to entertain a claim that a verdict was
    against the weight of the evidence in a criminal trial where the defendant did not
    A-0179-16T3
    19
    move for a new trial below). In any event, it does not "clearly appear[] that there
    was a miscarriage of justice under the law." R. 2:10-1. As the jury could
    rationally have found defendant guilty beyond a reasonable doubt, we may not
    disturb the verdict. 
    Smith, 262 N.J. Super. at 512
    .
    To the extent not addressed, defendant's remaining arguments lack
    sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
    Affirmed.
    A-0179-16T3
    20