State of New Jersey v. Edisson Shumi-Palaguachi

• Court: New Jersey Superior Court Appellate Division
• Decided: June 9, 2025
• Docket: A-2913-23
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2913-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDISSON SHUMI- PALAGUACHI, a/k/a EDISSON SHUMI PALAGUACHI, EDDY ZHUMI, EDDISSON SHUMI, EDISON SHUMI, and EDISON ZHUMI,

Defendant-Appellant. ________________________

Submitted April 8, 2025 – Decided June 9, 2025

Before Judges Gilson and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 23-05-1022.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Michael Kenney, Assistant Deputy Public Defender, of counsel and on the briefs). Theodore N. Stephens II, Essex County Prosecutor, attorney for respondent (Shep A. Gerszberg, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Edisson Shumi-Palaguachi of second-degree

sexual assault of a fourteen-year-old girl, N.J.S.A. 2C:14-2(c)(4), and third-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). Defendant

was sentenced to seven years in prison, required to report and register under

Megan's Law, N.J.S.A. 2C:7-1 to -23, and to parole supervision for life.

He appeals his convictions, arguing that the trial court erred in allowing

the victim to give hearsay testimony. Defendant also argues that the testimony

was fresh complaint testimony, and the court further erred by not giving the

proper instruction concerning fresh complaint testimony. Defendant also

challenges his sentence, contending that the trial court failed to make adequate

findings concerning the aggravating and mitigating factors. Because the victim's

testimony was not hearsay and was not fresh complaint testimony, we affirm his

convictions. However, because the sentencing court did not make express

findings of facts on the aggravating and mitigating factors, we remand for

resentencing.

A-2913-23 2 I.

We discern the facts from the record, including the testimony provided at

trial by the victim, L.F. (Linda).1

Linda testified that on March 13, 2020, when she was fourteen years old,

she and a friend, A.W. (Alice), went to a party in Newark because Linda had

seen an Instagram posting that there was a party with disc jockeys (DJs). So,

Linda and Alice traveled to Newark by train from Alice's home in Brooklyn,

New York.

Linda explained that when she and Alice initially arrived in Newark, they

went to a club. Thereafter, at approximately midnight, Linda, Alice, and two of

Alice's friends went to a party at a house in Newark.

At the house party, Linda met defendant, who came over to Linda and

Alice and offered them drinks. Linda identified defendant at trial and explained

that she first met him at the house party, and she referred to him by the name

"Ed."

After Linda finished one drink, she got up to go to the bathroom.

Defendant followed Linda, pulled her into a bedroom, and locked the bedroom

1 We use initials and fictitious names for the victim and witnesses to protect the privacy interests of a victim who was sexually assaulted when she was a minor. R. 1:38-3(c)(9), (12). A-2913-23 3 door. While standing behind Linda, defendant pulled down her pants and

underwear and pulled down his pants and underwear. Defendant then pushed

Linda "belly down" against a bed. While holding Linda's head down with one

hand on her neck and another hand covering her mouth, defendant penetrated

Linda's vagina with his penis.

Linda recalls that the sexual assault lasted for approximately five minutes.

She explained that she tried to resist the assault, but defendant held her down.

She also explained that she could not call out for help because defendant had his

hand over her mouth.

When the assault ended, defendant pulled up his pants and Linda tried to

leave the bedroom. Defendant, however, pulled Linda away from the door,

threw her to the floor, and told her that if she told anyone about what had

happened, they would not believe her because he knew several police officers.

Defendant then took a taser out of his pants pocket and threatened to kill Linda.

When defendant left the bedroom, Linda went to the bathroom, locked the

door, and called Alice using her cell phone. Alice, who was in the living room,

came to the bathroom. At trial, Linda was then asked the following questions

and gave the following answers:

Q. Okay. Now did [Alice] ultimately join you in the bathroom?

A-2913-23 4 A. Yes.

Q. And what happened when she came in?

A. I was crying and she asked me what had happened.

Q. Did you tell her what happened?

A. Yes.

Alice and Linda then left the house in an Uber car and traveled back to

Alice's house in Brooklyn. Linda explained that initially she did not tell her

mother what had happened because she was afraid of defendant.

Thereafter, Linda's mother received a phone call and a text message from

someone who told her that Linda had been assaulted at a party. Linda's mother

then spoke to Linda, who disclosed what had happened. On May 29, 2020,

Linda, her parents, and Alice went to the police in Newark to report the assault.

Following an investigation, a grand jury indicted defendant for second-

degree sexual assault; third-degree endangering the welfare of a child; third-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);

fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).

Defendant elected not to testify at trial. He called two witnesses who had

been present at the house party on March 13 and 14, 2020. Those witnesses,

A-2913-23 5 who both knew defendant, testified that Linda had initially been with them and

defendant earlier in the evening, and that they had all then traveled to the party

where defendant was the DJ. When that party ended, they had all returned to

defendant's house. Both witnesses testified that Linda was only at the house for

a short period of time after they returned from the party. The witnesses also

stated that Linda had come back to the house the following morning and

defendant had driven her to the train station.

After hearing all the testimony and considering the evidence, the jury

convicted defendant of second-degree sexual assault and third-degree

endangering the welfare of a child. The jury acquitted defendant of the weapons

and aggravated assault charges.

At sentencing, the court merged the endangering conviction with the

sexual assault conviction. On the sexual assault conviction, defendant was

sentenced to seven years in prison. Defendant was also required to register and

report under Megan's Law and sentenced to parole supervision for life . The

court also enjoined defendant from having any contact with the victim under

Nicole's Law, N.J.S.A. 2C:14-12.

II.

A-2913-23 6 On appeal, defendant makes two arguments, which he articulates as

follows:

POINT I – THE TRIAL COURT ERRED BY ADMITTING HEARSAY TESTIMONY OBSTENSIBLY UNDER THE FRESH COMPLAINT DOCTRINE AND THEN FAILING TO INSTRUCT THE JURY AS TO THE NARROW PURPOSE OF SUCH TESTIMONY.

POINT II – [DEFENDANT] MUST BE RESENTENCED BECAUSE THE TRIAL COURT DID NOT ADEQUATELY EXPLAIN THE FACTUAL BASIS FOR FINDING AGGRAVATING FACTORS THREE AND NINE, OR ASSIGN[ING] ANY SPECIFIC WEIGHT TO THE AGGRAVATING OR MITIGATING FACTORS.

A. The Alleged Hearsay Testimony.

Defendant challenges his convictions by arguing that the trial court erred

in allowing Linda to give hearsay testimony. Defendant then argues that the

testimony may have been admissible as fresh complaint evidence, but the trial

court compounded its error by not instructing the jury on the limited use of fresh

complaint testimony.

The testimony defendant challenges is Linda's statement that when Alice

joined her in the bathroom, Linda was asked if she told Alice what happened,

and Linda responded: "Yes." Linda's testimony was neither hearsay testimony

nor was it fresh complaint testimony.

A-2913-23 7 Hearsay is "a statement . . . [other than one made by] the declarant . . .

while testifying at the . . . trial or hearing . . . offer[ed] in evidence to prove the

truth of the matter asserted." N.J.R.E. 801(c). The New Jersey Supreme Court

has explained:

[T]he hearsay rule applies when a declaration is offered to prove the truth of the statement attributed to the declarant. It follows, therefore, that if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial. But if proffered evidence is hearsay, it can be admitted only pursuant to one of the exceptions to the hearsay rule.

[Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (quoting State v. Long, 173 N.J. 138, 152 (2002)).]

Linda's testimony that she told Alice what had happened was not hearsay

testimony. Linda did not state what she had told Alice; rather, she simply stated

that she had told Alice what had happened. In other words, she did not explain

what she told Alice or make any statements conveying what she said to Alice.

Moreover, Linda gave her testimony in court. "[S]tatements . . . 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" are "not . . . inadmissible

hearsay." Carmona, 189 N.J. at 376 (internal quotation marks omitted). See

also State v. Kelly, 207 N.J. Super. 114, 121 (App. Div. 1986) (holding that

A-2913-23 8 testimony regarding the fact that calls were made was admissible and not

hearsay because it was "not offered to prove the truth of any assertion of fact

made by the caller during the conversation").

Linda's testimony was also not fresh complaint testimony. "The fresh-

complaint rule allows witnesses in a criminal trial to testify to a victim's

complaint of sexual assault." State v. Hill, 121 N.J. 150, 151 (1990). The

doctrine of fresh complaint testimony was developed "to counteract the

persistent 'timing myth' that victims of sexual assault would cry out and alert

others to the crime." State v. W.B., 205 N.J. 588, 616 (2011) (quoting State v.

P.H., 178 N.J. 378, 392 (2004)). So, the fresh complaint exception allows the

State to neutralize that myth by "introducing evidence that the victim . . . [made]

a complaint within a reasonable time after the alleged assault." Ibid. (citing

P.H., 178 N.J. at 392).

Linda responded "Yes" to the question of whether she told Alice what had

happened. Thus, that testimony was not Alice testifying as to what Linda told

her; rather, it was Linda's limited testimony that she told Alice what happened.

Moreover, as already pointed out, Linda did not tell the jury what she told Alice.

Accordingly, Linda's testimony was not fresh complaint evidence.

A-2913-23 9 Furthermore, defendant did not object to Linda's testimony at trial. He

raised these issues for the first time on appeal. Appellate courts review a trial

judge's evidentiary rulings under an abuse of discretion standard. State v.

Kuropchak, 221 N.J. 368, 385-86 (2015); State v. P.S., 202 N.J. 232, 250 (2010).

When an objection is not made at trial, appellate courts review the alleged error

for plain error. See R. 2:10-2; State v. Branch, 182 N.J. 338, 353 (2005). "[A]n

unchallenged error constitutes plain error if it was 'clearly capable of producing

an unjust result,'" State v. Singh, 245 N.J. 1, 13 (2021) (quoting R. 2:10-2), and

raises a "'reasonable doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached,'" State v. Scott, 229 N.J. 469, 484 (2017) (alteration in

original) (quoting State v. R.B., 183 N.J. 308, 330 (2005)).

Because we have determined that Linda's testimony was not hearsay

testimony nor was it fresh complaint testimony, we discern no abuse of

discretion. We also discern no plain error. In that regard, we point out that in

applying the plain error standard, a court must evaluate the alleged errors "in

light of the overall strength of the State's case." State v. Sanchez-Medina, 231

N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388 (2012)).

Linda's limited testimony that she told Alice what happened to her does not rise

to the level of plain error because it does not undercut Linda's extensive and

A-2913-23 10 admissible testimony during which she told the jury how defendant sexually

assaulted her.

B. The Sentence.

"An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018) (first citing State v. Robinson, 217 N.J. 594, 603 (2014); and then citing

State v. Blackmon, 202 N.J. 283, 297 (2010)). In that regard, an appellate court

will affirm a sentence unless:

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

When imposing a sentence, trial courts must "explain and make a thorough

record of their findings to ensure fairness and facilitate review." State v. Comer,

249 N.J. 359, 404 (2022). See also State v. Torres, 246 N.J. 246, 272 (2021)

(requiring an "explanation for the overall fairness of a sentence"); Fuentes, 217

N.J. at 74 (explaining that "[a] clear and detailed statement of reasons is thus a

A-2913-23 11 crucial component of the process conducted by the sentencing court, and a

prerequisite to effective appellate review"). "Proper sentencing thus requires an

explicit and full statement of aggravating and mitigating factors and how they

are weighed and balanced." State v. McFarlane, 224 N.J. 458, 466 (2016)

(quoting State v. Randolph, 210 N.J. 330, 348 (2012)). In other words, a

"sentencing court [must] explain clearly why an aggravating or mitigating factor

presented by the parties was found or rejected and how the factors were balanced

to arrive at the sentence." State v. Case, 220 N.J. 49, 66 (2014) (citing Fuentes,

217 N.J. at 73).

In sentencing defendant, the trial judge found aggravating factor three,

risk of re-offense, N.J.S.A. 2C:44-1(a)(3), and factor nine, the need to deter

further criminal activity, N.J.S.A. 2C:44-1(a)(9). Regarding the mitigating

factors, the trial court found mitigating factor seven, that the defendant had no

prior history of delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7), and

factor eight, that defendant's conduct was the result of circumstances unlikely to

recur, N.J.S.A. 2C:44-1(b)(8). The trial court judge articulated his findings

concerning the aggravating and the mitigating factors as follows:

The Court does find aggravating factors three and nine. The Court finds mitigating factors seven and eight. The aggravating and mitigating factors are in equipoise.

A-2913-23 12 The findings on the aggravating and the mitigating factors were not sufficiently

detailed "to ensure fairness and facilitate review." Comer, 249 N.J. at 404. The

sentencing court did not explain why it found aggravating factors three and nine .

Nor did the court explain why and what facts supported its findings of mitigating

factors seven or eight. The court's conclusory statement also does not allow us

to determine whether the court considered all the aggravating and mitigating

factors, particularly those factors identified by defense counsel at the sentencing

hearing. Finally, the court did not explain its balancing of the factors. See Case,

220 N.J. at 66 (citing Fuentes, 217 N.J. at 73) (requiring an explanation of the

balancing of the factors).

We therefore remand for resentencing. In doing so, we express no view

on the length of the sentence imposed. Nevertheless, we note that the seven-

year sentence was in the mid-range of the range for a second-degree criminal

conviction. See N.J.S.A. 2C:43-6(a)(2).

Affirmed in part, reversed in part, and remanded for resentencing. We do

not retain jurisdiction.

A-2913-23 13