RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-0820-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLAUDIO J. MARQUEZ-GUZMAN,
Defendant-Appellant.
________________________________
Submitted May 30, 2017 – Decided July 6, 2017
Before Judges Haas and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 13-02-0305.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender II, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan Berkow, Special
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Claudio Javier Marquez Guzman appeals from his
conviction after a jury trial and imposed sentence. We affirm.
We derive the facts from the evidence presented at trial.
Defendant lived with his girlfriend, T.L. (Terry),1 their two young
sons and Terry's seven-year old stepdaughter, L.L. (Lisa). In
October 2012, while Terry was working, Lisa began spending weekends
with other family members. During one of these visits, she
revealed to her adult cousin, C.H. (Caroline) that defendant had
touched her inappropriately more than once. Lisa told Caroline
that she had not told anyone about the sexual abuse because
defendant had threatened to cut her tongue out with a knife.
That evening Caroline and her family took Lisa to St Peter's
Hospital where Dr. Manoj Sheth examined her. The police were
notified of Lisa's allegations and an investigator from the
prosecutor's office met with Lisa, Caroline, and Terry. Lisa
provided a statement to the investigator that was video recorded.
She verbally described, and used anatomical dolls to demonstrate
the sexual contact that had taken place. Lisa also said that she
had previously told her mother several years earlier about the
contact; Terry had confronted defendant who denied any wrongdoing.
The State sought to admit the recorded statement of Lisa to
the investigator, and her statement to Caroline under the tender
years hearsay exception, N.J.R.E. 803 (c)(27). Judge Diane Pincus
1
We use initials and pseudonyms to protect the confidentiality
of the victim and family members.
2 A-0820-15T3
conducted a hearing, and determined that the statement of Lisa to
Caroline as well as her recorded statement were admissible and
could be played for the jury at trial. In a thoughtful oral
decision, the judge considered the statements and found, under a
totality of the circumstances, that Lisa's statements to the
investigator and Caroline "contained significant indicia of
reliability, and thus are, trustworthy and reliable."
At trial, the State sought to introduce the statement made
by Lisa to her mother several years earlier regarding sexual
contact by defendant. During that conversation, Lisa also told
Terry that she had not said anything earlier because defendant had
threatened to cut her tongue out. After hearing testimony from
Terry outside the presence of the jury, Judge Pincus found that
the statement was trustworthy, and therefore admissible under
N.J.R.E. 803(c)(27). She noted its consistency with the testimony
later given by the child in her video-recorded statement. The
judge also stated that the State was entitled to present multiple
statements under the tender years exception.
The judge also conducted a Rule 104 hearing to determine the
admissibility of the statements made by Lisa to the treating
doctor, Dr. Sheth, at St. Peter's Hospital on the night of these
events. The State again sought to introduce the physician's
testimony under Rule 803(c)(27). Dr. Sheth testified that Lisa
3 A-0820-15T3
told him that "her stepfather touches her privates, sometimes with
hands, sometimes with penis, and she's scared." Defense counsel
had no objection to the doctor's testimony. The judge determined
the statement to be trustworthy and admissible under the tender
years exception.
Defendant gave a video-recorded statement to the police.
Although he initially denied that he had ever sexually touched
Lisa, he eventually admitted that he had touched her once on the
outside of her vagina. At trial, however, defendant denied that
he had touched Lisa as he had previously described but instead
occasionally touched her buttocks outside of her clothes in a
playful way, not in a sexual manner. Defendant also stated that
he had threatened to cut Lisa's tongue out because of statements
she had made about him in school, not due to any allegations of
sexual abuse.
Defendant was convicted of second-degree sexual assault and
second-degree endangering the welfare of a child. He was sentenced
to an aggregate term of ten years imprisonment, with a mandatory
parole disqualification period.
On appeal, defendant argues:
POINT I: THE PREJUDICIAL EFFECT OF
CUMULATIVE, REPETITIOUS TESTIMONY ADMITTED
PURSUANT TO N.J.R.E. 803(c)(27) DENIED
DEFENDANT A FAIR TRIAL AND REQUIRES REVERSAL
OF THE CONVICTIONS. U.S. Const. Amends. V,
4 A-0820-15T3
VI, and XIV; N.J. Const. Art. I, pars. 1, 9,
and 10. (Not Raised Below)
POINT II: THE MAXIMUM 10-YEAR NERA SENTENCE
FOR A SECOND-DEGREE OFFENSE IS MANIFESTLY
EXCESSIVE AND SHOULD BE REDUCED.
The tender years hearsay exception, N.J.R.E. 803(c)(27),
permits hearsay statements from sexually abused children to be
admitted in certain circumstances, and where the court finds "that
on the basis of the time, content and circumstances of the
statement there is a probability that the statement is
trustworthy." See State v. D.R., 109 N.J. 348, 378 (1988); State
ex rel A.R., 447 N.J. Super. 485, 488 (App. Div. 2016), certif.
granted, ___ N.J. ___ (2017).
Defendant does not challenge the admissibility of the
statements presented to the jury under the tender years exception;
rather, he contends that the introduction of multiple separate
statements was "prejudicial" and "cumulative" and should have been
excluded under N.J.R.E. 403. As this argument was not presented
to the trial judge, we review the assertion for plain error, R.
2:10-2.
When considering the admission into evidence of several
corroborative statements under the tender years exception, our
Supreme Court has advised that the "trial court should be cognizant
of its right under N.J.R.E. 403 to exclude evidence, if it finds
5 A-0820-15T3
in its discretion, that the prejudicial value of the evidence
substantially outweighs its probative value." State v. D.G., 157
N.J. 112, 128 (1999). Judge Pincus noted in her several rulings
that the admissibility of the requested statements remained
subject to Rule 403. Our appellate review of this evidentiary
ruling requires considerable deference. Such rulings generally
"should be upheld 'absent a showing of an abuse of discretion,
i.e., there has been a clear error of judgment.'" State v. J.A.C.,
210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138,
147 (2001)); see also State v. Buda, 195 N.J. 278, 294 (2008).
Here, the judge permitted the video-recorded statement of the
child in addition to her live testimony at trial. In State v.
Burr, 392 N.J. Super. 538, 573 (App. Div. 2007), we considered,
and rejected, the defendant's argument that a video was unduly
prejudicial as a "repetitive, corroborative statement of [the
child's] trial testimony." Id. at 564. We determined the tape
to have probative value as being "closer in time to the alleged
sexual assault than the trial" and because it demonstrated that
the statements made to the prosecutor's office were "largely
consistent with those made . . . at trial." Id. at 573. We have
not been presented with anything to deny the application of the
same rationale here.
6 A-0820-15T3
The three additional statements permitted were from Caroline,
Terry, and Dr. Sheth. The testimony was very brief from Dr. Sheth
and Terry. We are satisfied that the judge acted within her
discretion under Rule 403 in permitting the statements. See State
v. C.H., 264 N.J. Super. 112, 124 (App. Div. 1993) (permitting the
testimony of six witnesses regarding statements made by the sexual
abuse victim); State v. E. B., 348 N.J. Super. 336 (App. Div.),
certif. denied, 174 N.J. 192 (2002) (permitting the testimony of
five witness statements pursuant to N.J.R.E. 803 (c)(27)).
Defendant contends that the sentence imposed was "manifestly
excessive and should be reduced." We disagree. The judge's
findings and balancing of the aggravating and mitigating factors
are supported by adequate evidence in the record, and the sentence
is neither inconsistent with sentencing provisions of the Code of
Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, nor shocking to the
judicial conscience. See State v. Bieniek, 200 N.J. 601, 608
(2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed.
7 A-0820-15T3
STATE OF NEW JERSEY VS. CLAUDIO J. MARQUEZ-GUZMAN(13-02-0305, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion