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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2232-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE V. JARQUIN-JARQUIN,
Defendant-Appellant. __________________________
Submitted February 25, 2026 – Decided April 21, 2026
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 22-04- 0080.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Michael Denny, Assistant Deputy Public Defender, of counsel and on the brief).
Jennifer Davenport, Attorney General, attorney for respondent (Debra G. Simms, Deputy Attorney General, of counsel and on the brief).
Appellant filed a supplemental brief on appellant's behalf. PER CURIAM
Defendant was convicted of aggravated sexual assault, sexual assault, and
endangering the welfare of a child, stemming from allegations that he
inappropriately touched his eleven-year-old stepdaughter G.R.1 Defendant
appeals from the order admitting four hearsay statements made by the child
victim into evidence under N.J.R.E. 803(c)(27), asserting the statements were
insufficiently trustworthy. Defendant raises additional arguments in his self-
represented brief.
We are satisfied the trial court did not abuse its discretion in admitting the
statements. The court properly considered and applied N.J.R.E. 803(c)(27), and
the factors outlined in Idaho v. Wright, 497 U.S. 805 (1990), and concluded the
statements were trustworthy. We also discern no merit to defendant's arguments
posited in his self-represented brief. We affirm.
I.
In December 2021, G.R. was living with her mother, defendant, her
brother, and several uncles. She was in sixth grade. After talking to friends
G.W. and B.G. about the abuse, G.R. reported it to her guidance counsellor, K.F.
1 We use initials to protect the victim's privacy. R. 1:38-3(c)(9). A-2232-23 2 The school then contacted the police and G.R. recounted the incidents of sexual
assault to Hunterdon County Prosecutor's Office Detective Vanessa Jimenez.
Defendant was charged in an indictment with: first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A.
2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a)(1). Prior to trial, the State sought to admit the four hearsay
statements made by G.R. under Rule 803(c)(27), the tender years exception.
The following testimony was elicited during the two hearing days
regarding the admissibility of the statements.
Statement from G.R. to G.W.
At the time of the hearing in December 2022, G.W. was in seventh grade.
She said she was neighbors with G.R. and they were "very close." She testified
that in the Fall of 2021, G.R. called her via FaceTime. G.R. was crying during
the call and told G.W. that "[defendant] was touching her since she was a little
kid and . . . it hurt . . . and . . . affected her." The conversation ended when G.W.
had to leave for dinner. G.W. then attempted to call G.R. back. However, the
call did not last long because G.R. hung up after defendant walked into her room.
Approximately twenty minutes later, G.R. called her on FaceTime. B.G. was
also on the call and G.W. thought G.R. might have been talking to B.G. about
A-2232-23 3 the abuse. The girls did not discuss it again once they were all together on the
third call.
Statement from G.R. to B.G.
B.G. testified at the September 2022 hearing date. She was twelve years
old and in seventh grade. She stated she was friends with G.R. in the Fall of
2021. According to B.G., G.R. texted her on December 1, 2021, that her
stepfather had been inappropriately touching her "for a while." The
conversation then continued via FaceTime. G.R. told B.G. "she had never talked
about [the abuse] with anyone before and how it was . . . a really sensitive topic
for her." B.G. stated G.R. sounded "sad," "scared," "anxious" and "stressed out"
during their conversation. B.G. suggested they should talk to the guidance
counselor about the situation.
The next day, B.G. went with G.R. to the guidance counselor, K.F. B.G.
said G.R. was crying and asked B.G. to tell K.F. what had been happening to
her. After B.G. did so, K.F. asked B.G. to leave.
Statement from G.R. to K.F.
K.F. worked as a guidance counselor at the school which G.R. and the
other girls attended. She testified that she received an email on December 1,
2021, from G.R. requesting a meeting. The following day, G.R. and B.G. came
A-2232-23 4 to her office and K.F. said they looked "very worried and concerned to tell [her]
what they needed to tell [her]." G.R. then told K.F. she had been touched
inappropriately by defendant "the night before" and that it had "been happening
for a while." G.R. told her that her mom did not know about the abuse. G.R.
said defendant usually touched her at nighttime in her bedroom or when G.R.'s
mother was not paying attention. She gestured to her chest and area between
her legs when asked to describe where she had been touched. K.F. stated G.R.
had "trouble making eye contact," her "voice was kind of weak" and she was
slumped down and fidgety. K.F. alerted school administration, the Division of
Child Protection and Permanency and the police to G.R.'s allegations. She said
G.R. did not return to that school after that day.
Statement to Detective Jimenez
Detective Jimenez responded to the school after receipt of G.R.'s
allegation of sexual assault and interviewed G.R. in the guidance counselor's
office with a handheld recorder. There was no video recording of the interview.
The audio recording was played for the court during the motion hearing.
During the interview, G.R. told Jimenez that defendant would touch her
"upper chest part, and then sometimes . . . touch[] [her] [vagina]." G.R. said
defendant had been touching her for some time but she was scared to tell her
A-2232-23 5 mother because her mother was "a little mean." She explained that the touching
would often occur while she was in her bedroom but also while she was in her
mother's room. She said she puts a chair against her bedroom door to prevent
defendant from coming in. G.R. said defendant touched her over and under her
clothes. Although G.R. was unable to give an "exact number," she told Jimenez
defendant had touched her "more than twenty times." She expressed an extreme
discomfort whenever around defendant and told Jimenez she essentially tried to
avoid him at all times.
According to Jimenez, G.R. said she told B.G. about the abuse because
B.G. had previously divulged to her that her grandfather did "something similar"
and B.G. had disclosed it to K.F. G.R. said she had told defendant to stop
touching her.
The trial court granted the State's motion to admit the statements on
December 13, 2022, in a comprehensive written decision and accompanying
order. The court considered Rule 803(c)(27) and the applicable case law,
including Wright, 497 U.S. at 821-22, and determined the statements made to
G.W. and B.G. were trustworthy. The court found the statements were
spontaneous and consistent, and that G.R. had no motive to fabricate the
allegations.
A-2232-23 6 In considering the statements made to K.F., the court found they "were
made in response to noncoercive and nonsuggestive questions by [K.F.]." The
statements were also consistent with those made to G.W. and B.G. Under the
totality of the circumstances, the court found the statements trustworthy. The
court further found the probative value of the statements outweighed any
prejudice under a N.J.R.E. 403 analysis.
In addressing the recorded statement made to Detective Jimenez, the court
found G.R. was not coerced or pressured into giving the interview and the
statement was consistent with those given to her friends and K.F. The court
found the statement was trustworthy and admissible under Rules 803(c)(27) and
403.
After trial, the jury found defendant guilty on all counts. The court
sentenced defendant to an aggregate term of twenty-five years in prison with
five years of parole supervision.
II.
On appeal, defendant raises a sole point for our consideration in his
counseled brief:
THE IMPROPER ADMISSION OF MULTIPLE UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING SEXUAL ABUSE DENIED THE
A-2232-23 7 DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
Defendant raises the following points in his self-represented brief:
POINT I ALTHOUGH FRESH COMPLAINT EVIDENCE WAS INTRODUCED AT TRIAL, THERE WAS NO LIMITING INSTRUCTION TELLING THE JURY IT COULD NOT USE THE FRESH COMPLAINT EVIDENCE AS EITHER SUBSTANTIVE EVIDENCE OF MR. JARQUIN-JARQUIN['S] GUILT OR AS COR[R]OBATIVE EVIDENCE OF THE VICTIM'S TESTIMONY. THAT ERROR WAS COMPOUNDED BY THE DEFENSE LAWYER FAILING TO OBJECT IN THE INTRODUCTION OF MORE THEM [sic] ONE FRESH COMPLAINT, AND THERE WAS NO LIMITING INSTRUCTION TELLING THE JURY IT COULD NOT USE THE FRESH COMPLAINT AS EVIDENCE.
POINT II DEFENSE LAWYER FAILING TO OBJECT IN THE INTRODUCTION OF MORE THEM [sic] ONE FRESH COMPLAINT, AND THE TRIAL COURT ERRED IN FAILING TO GIVE THE PROPER JURY INSTRUCTIONS IN THE JURY CHARGE, AND THERE WAS NO LIMITING INSTRUCTION TELLING THE JURY IT COULD NOT USE[] THE FRESH COMPLAINT AS EVIDENCE, AND TO TELL THE JURY WHO [sic] TO TREAT THE TESTIMONY OF B[.]G., K[.F]., AND G[.W.].
POINT III DEFENSE LAWYER FAILING TO OBJECT IN THE TESTIMONY GIVING [sic] BY LAW ENFORCEMENT THAT DEFENDANT LABEL THE VICTIM A LIAR AS LIVE TESTIMONY BECAUSE
A-2232-23 8 THEY BOLSTER THE CREDIBILITY OF THE VICTIM'S ALLEGATIONS AND ATTACK DEFENDANT'S CREDIBILITY AND THESE STATEMENTS WERE INADMISSIBLE AND SEVERELY PREJUDICIAL ARGUES THAT JUST AS AN [LAW ENFORCEMENT] OFFICER SHOULD NOT BE OPINING ON WITNESS CREDIBILITY THE TRIAL COURT ERRED IN FAILING TO GIVE THE PROPER JURY INSTRUCTIONS IN THE JURY CHARGE, AN[D] TO TELL THE JURY [HOW] TO TREAT THE TESTIMONY OF THE LAW ENFORCEMENT.
A. Our CASE LAW strongly condemns comments by law enforcement that opine on the CREDIBILITY of other witnesses and on a defendant's guilt or innocence.
B. Many [o]ther[] states have addressed this issue[] and found that such testimony is improper.
III.
"[I]n reviewing a trial judge's finding that a child's statement meets the
trustworthiness requirement of N.J.R.E. 803(c)(27), appellate courts affirm
unless the judge's determination amounted to an abuse of discretion." State v.
P.S., 202 N.J. 232, 250 (2010) (quoting State v. Nyhammer, 197 N.J. 383, 411
(2009)).
A trial court's determination of reliability or trustworthiness sufficient to allow admission of evidence should not be disturbed unless, after considering the record and giving the deference owed to the court's credibility findings, it is apparent that the finding is "clearly a mistaken one and so plainly
A-2232-23 9 unwarranted that the interests of justice demand intervention and correction[.]"
[Id. at 250-51 (alteration in original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999) (internal quotation marks and citations omitted)).]
Only in those circumstances may "an appellate court 'appraise the record
as if it were deciding the matter at inception and make its own findings and
conclusions.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)).
Defendant contends that the trial court erroneously applied the tender
years exception under Rule 803(c)(27) in admitting G.R.'s four hearsay
statements, asserting the court did not properly consider the trustworthiness
factors enumerated in Wright. Defendant argues the "statements were overly
cumulative, and made under circumstances that created undue suggestiveness
. . . ."
"Hearsay" is defined as a "statement" that "the declarant does not make
while testifying at the current trial or hearing" that is offered by a party "in
evidence to prove the truth of the matter asserted in the statement." N.J.R.E.
801(c). Rule 803(c)(27) is an exception under these strictly delineated
conditions:
A-2232-23 10 A statement by a child under the age of [twelve] relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil case if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) . . . the child testifies at the proceeding. . . .
[N.J.R.E. 803(c)(27).]
Defendant challenges only the trustworthiness prong of the rule.
In Wright, the United States Supreme Court established factors for courts
to use in determining whether a young child's statement may be considered
"trustworthy." 497 U.S. at 821-22. These factors include the (1) spontaneity
and consistent repetition; (2) mental state of the declarant; (3) use of
terminology unexpected of a child of similar age; and (4) lack of motive to
fabricate. Ibid. The Court emphasized that "[t]hese factors are . . . not exclusive,
and courts have considerable leeway in their consideration of appropriate
factors." Id. at 822. In determining whether a statement is trustworthy a court
should consider "the totality of the circumstances." P.S., 202 N.J. at 249.
We apply these principles to the four challenged statements.
A-2232-23 11 G.R.'s statement to B.G.
The court considered the Wright factors and found it was unclear "whether
the statement [G.R.] made was spontaneous because B.G. could not recall what
prompted the conversation." However, the court found G.R. was "distressed"
when talking to B.G., she used terminology that was not unexpected, but it was
not expected "that a child of her age would state she had been inappropriately
touched by her stepfather and that it had been happening for a while." The court
also found the statement was consistent with the other statements made to G.W.,
K.F., and Jimenez, and there was no indication of a motive to fabricate.
Therefore, the court found G.R.'s statement to B.G. was trustworthy.
Defendant contends the court erred in its determination because G.R.'s
statement was not spontaneous. Defendant refers to information disclosed at
trial that earlier that day in school, prior to the text that G.R. sent to B.G., B.G.
told G.R. "something about [B.G.'s] grandfather touching her." Defendant
argues that "the court's conclusion that 'it is not expected that a child of her age
would state she had been inappropriately touched' is completely out of place
given the context of the conversation, where B.G. had brought up her
experiences with her grandfather before G.R. disclosed her own."
A-2232-23 12 We note this information was first presented at trial and was not testimony
before the court for its consideration at the pre-trial motion hearing. During her
direct testimony at trial G.R. testified:
[E]arlier that day . . . [on December 1, 2021,] [B.G.] had said something about her grandfather touching her, and that like her mom didn't believe her. And I felt very bad because I knew that like . . . that's the same thing that's happening with me, and . . . then so after school I texted her. . . . I was like: Hey, [B.G.], like I know you might not want to talk about it but I was wondering if like you could kinda help me because I want to say something about [the abuse] but I'm scared because like I don't know what could happen. And like her mom didn't believe her, so I was scared that like my mom might not believe me.
Defense counsel did not question either G.R. or B.G. about this testimony.
We are satisfied the trial court did not abuse its discretion in its findings
and determination. The court did not have any testimony regarding a prior
exchange between the girls at school that day. Although that information might
have affected the spontaneity determination, defense counsel did not request the
court to reconsider its ruling or preclude any testimony regarding the statement.
Furthermore, that was just one factor. The court also found G.R.'s statement to
B.G. was consistent with her own testimony and statements made to G.W., K.F.,
and Detective Jimenez. Additionally, G.R.'s emotional response when
recounting her abuse to B.G.—which included anxiety, sadness, crying, and
A-2232-23 13 difficulty talking or breathing—further supports the credibility of her statement.
In addition, defendant presented no motive for any fabrication of the allegations.
The court did not abuse its discretion in finding G.R.'s statement to B.G.
trustworthy in accordance with Rule 803(c)(27).
G.R.'s statement to G.W.
Defendant contends that the trial court erred in failing to consider the fact
that "G.R. had just spoke[n] to B.G. before speaking with G.W.," creating the
specter of some "outside influence."
The trial court did not abuse its discretion in admitting this statement.
G.R.'s FaceTime call to G.W. was spontaneous. She had not yet told anyone
about the abuse. She was crying and her statement was consistent with later
disclosures. The court's analysis of the factors supports its conclusion that
G.R.'s statement was trustworthy.
G.R.'s statement to K.F.
Defendant contends that the conversations between G.R. and her friends,
in conjunction with "G.R.'s plan to meet with B.G. and go to K.F.'s office
together show[] that this statement was not spontaneous."
A-2232-23 14 The trial court did not abuse its discretion in finding G.R.'s statement to
K.F. trustworthy. As the court acknowledged, spontaneity is only one factor in
the analysis of the totality of the circumstances.
G.R.'s statements to K.F. were made without coercion or undue influence.
K.F. testified that after B.G. told her about the abusive situation, K.F. "thanked
[B.G.] for being a good friend and bringing [G.R.] to [her], but then . . . asked
her to go back to class, [and] not talk to any students about it." K.F. then asked
G.R. for more information in a non-leading manner. As the trial court stated,
"[G.R.'s] statements were made in response to noncoercive and nonsuggestive
questions by the guidance counselor. . . . These questions did not suggest an
answer to [G.R.] nor were they threatening, they merely requested details about
what the alleged inappropriate touching was so that the guidance counselor
could provide the proper assistance to [G.R.]." As discussed above, G.R.'s
consistent account, evident emotional distress, absence of unexpected
terminology, but unexpected subject and lack of any indication of fabrication all
support the finding of trustworthiness.
G.R.'s statement to Detective Jimenez.
Defendant contends that G.R.'s statement to Jimenez lacked
trustworthiness because the court failed to consider how G.R.'s previous
A-2232-23 15 discussions with her friends and guidance counselor influenced her statement to
Jimenez. Defendant further asserts that "Jimenez's failure to video record
[G.R.'s] statement left the trial court guessing as to how G.R. was physically
responding during the interview."
The trial court did not find the absence of a videotape was dispositive in
determining the trustworthiness of G.R.'s statement to Jimenez. The court stated
that
[a]lthough [G.R.'s] statement to Detective Jimenez was not spontaneous, the detective asked nonleading questions in an uncoercive manner. [G.R.] was distressed and anxious and sometimes cried during her interview. The testimony did not indicate any potential motivations to fabricate the allegations . . . . The fact that Detective Jimenez did not take a video statement due to what she described as an emergent situation does not affect [the] court's decision as to its trustworthiness.
In P.S., the Supreme Court declined to "establish a per se rule that in the
absence of a [video]tape recording, a child victim's statement should be deemed
inadmissible . . . ." 202 N.J. at 252. Rather, the Court emphasized that
evaluating the trustworthiness of the statement depends on a review of the
totality of the circumstances. Id. at 253 ("Because the tape is only one factor in
the totality of circumstances analysis [the Court] established regarding
A-2232-23 16 trustworthiness, it follows that the absence of a tape, standing alone, is not
dispositive.").
Jimenez testified that at the time of these events, detectives did not have
body worn cameras, so she was unable to take video of the interview. Jimenez
decided to conduct the interview in the school because it was the end of the
school day and the allegations involved a household member. In addition, G.R.'s
younger brother was waiting for her to go home. Jimenez was not sure whether
G.R. would be in defendant's care after school. Therefore, she conducted the
interview in the guidance counselor's office rather than at the police station.
We discern no abuse of discretion in the admission of this statement. A
review of the nearly hour-long interview transcript reveals a trustworthy
statement, unaffected by bias or external influence. G.R.'s statement to Jimenez
was consistent with her previous statements made to her friends and K.F. G.R.
demonstrated a clear understanding of the importance of telling the truth,
showed no evidence of an improper motive to fabricate charges, and had no prior
discussion with Jimenez before the interview.
Without a video recording, facial expressions and body movements could
not be observed, however the court stated it "was able to hear the inflections in
[G.R.'s] voice," supporting its conclusion regarding certain factors. The trial
A-2232-23 17 court did not abuse its discretion in finding G.R.'s statement to Jimenez to be
trustworthy.
Defendant contends that G.R.'s statements to B.G. and G.W. should have
been excluded "as unduly cumulative and repetitive," given "G.R.'s own
testimony at trial, and because her statements to K.F. and Jimenez were also
going to be admitted."
In analyzing the statements under Rule 403, the trial court found that
"[t]he probative value of B.G.'s and G.W.'s testimony [was] high." The court
found noteworthy "the fact that neither girl testified as to any details of the
sexual misconduct; rather, that there was inappropriate touching by [defendant]
over a period of time and it hurt." Thus, "[t]he probative value of this testimony
outweigh[ed] any prejudice thereby caused."
Rule 403 states that "relevant evidence may be excluded if its probative
value is substantially outweighed by the risk of: (a) [u]ndue prejudice, . . . or
(b) . . . needless presentation of cumulative evidence." See also State v. Higgs,
253 N.J. 333, 358 (2023) ("Probative value is 'the tendency of evidence to
establish the proposition that it is offered to prove.'") (quoting 1 McCormick On
Evid. § 185.2 (9th ed.)).
A-2232-23 18 Here, the trial court did not abuse its discretion. The testimony of B.G.
and G.W., although brief, was highly significant. Their statements, as being
consistent with G.R.'s account, strengthened G.R.'s credibility and her
truthfulness in describing her encounters with defendant.
In considering the potential prejudice, the trial court noted B.G. and G.W.
did not provide specific or graphic details regarding any sexual assault . It was
for the jury to determine whether the described inappropriate touching
constituted sexual assault under the charged offenses. Accordingly, the court
did not abuse its discretion in admitting the statements of B.G. and G.W.
We need only address briefly one of defendant's arguments set forth in his
self-represented brief as it and the remaining arguments lack sufficient merit to
warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant asserts the court erred in failing to instruct the jury not to
consider "fresh complaint testimony" as substantive evidence of guilt or to
bolster the credibility of an alleged victim. The "fresh complaint" doctrine is a
common law exception to the hearsay rule allowing "the State to introduce
evidence that the victim did indeed make a complaint within a reasonable time
after the alleged assault." State v. P.H., 178 N.J. 378, 392 (2004).
A-2232-23 19 Unlike the tender rule exception, fresh complaint evidence is admissible
solely to show that "the alleged victim complained [at a particular time], not to
corroborate the victim's allegations concerning the crime." State v. W.B., 205
N.J. 588, 616-17 (2011) (alteration in original) (quoting State v. R.E.B., 385
N.J. Super. 72, 89 (App. Div. 2006)).
Here, the State sought to introduce G.R.'s statements pursuant to Rule
803(c)(27), not under the fresh complaint doctrine. Accordingly, the court did
not err in failing to instruct the jury on fresh complaint evidence. Moreover, the
argument was not raised to the trial court and is not appropriate for our review.
See State v. Robinson, 200 N.J. 1, 20-22 (2009).
Affirmed.
A-2232-23 20