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

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NOT FOR PUBLICATION WITHOUT THE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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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).

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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").

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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

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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

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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.

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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

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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

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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.

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