State v. Jose Anthony Guzman

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 27, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP615-CR Cir. Ct. No. 2014CF3157

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSE ANTHONY GUZMAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: CAROLINA STARK, Judge. Affirmed.

Before Brash, P.J., Kessler and Brennan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jose Anthony Guzman appeals from a judgment,
entered upon a jury’s verdict, convicting him on one count of first-degree sexual
No. 2018AP615-CR

assault of a child less than sixteen years old. Guzman also appeals from an order
denying his postconviction motion without a hearing. Guzman contends that trial
counsel was ineffective for failing to call two witnesses, for failing to elicit
additional testimony from the crime lab analyst, and for failing to object to a
portion of the State’s closing argument. We disagree with Guzman’s arguments,
and we affirm the judgment and order.

BACKGROUND

¶2 Around 6:00 p.m. on July 18, 2014, then-thirteen-year-old I.M. was
on the front stairs of the duplex where she lived with her family in the upper unit.
She had intended to go to the store with her grandfather, who lived a few houses
away, but he had already left. I.M.’s mother was upstairs, sleeping after returning
from work, and I.M. had locked herself out, so she was waiting on the stairs for a
friend.

¶3 As I.M. was waiting, she saw a man—later identified as Guzman—
park his car and make a phone call. After he ended the call, he came over to I.M.
and started to ask her about a “for rent” sign in the yard. She explained that it was
not for the duplex but for another house on the same lot. Guzman told I.M. that
she was pretty and asked if she had a boyfriend. Guzman then went to his car to
grab a piece of cardboard on which he wrote his phone number. He gave the
number to I.M. so her mother could call him about the rental property.

¶4 I.M. stated that after Guzman gave her his phone number, he gave
her two dollars, then grabbed her hand and put it on his penis. She said he pulled
down his shorts and held both of her hands on his penis, moving her hands up and
down three or four times while telling her that he loved her. I.M. also said that he
kissed her and rubbed his penis against her. Guzman then left.

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¶5 I.M. told her mother and grandfather what happened. They called
Guzman’s phone number and he returned. As Guzman walked back to the house,
he was confronted by Israel Nunez-Otero, a neighbor and friend of I.M.’s mother.
Guzman initially tried to flee but was grabbed by Nunez-Otero, who held Guzman
down until police arrived. Guzman was arrested and charged with one count of
first-degree sexual assault of a child less than sixteen years old.

¶6 I.M.’s grandfather, M.M., testified at trial. M.M. said he returned
home about 6:00 p.m. the day of the incident, and I.M. ran up to him, crying. She
told him what had happened. He punched his truck, which caught the attention of
Nunez-Otero. M.M. testified that he helped hold Guzman down until police
arrived. M.M. also testified that, as they held Guzman, Guzman kept saying “tell
her I’m sorry” and that he did not want to go to jail.

¶7 State Crime Lab Analyst Michelle Burns testified regarding DNA
evidence. I.M.’s pants had been swabbed in the crotch and fly areas, as well as
inside and outside the waistband. Only the inside of the waistband yielded enough
material for testing. The DNA was consistent with having come from two
individuals, but there was insufficient material to make either inclusionary or
exclusionary identifications. The analyst testified that there was at least one male
contributor, but she could not say conclusively whether the entire sample was a
mix of male and female DNA or a mix of DNA from multiple males. I.M.’s hands
were also swabbed for DNA. No DNA was recovered from her right hand. There
was a trace amount of male DNA on her left hand but, like the waistband sample,
it was too small of a sample to make any comparisons.

¶8 Burns’s report was also admitted at trial. Among other things, this
report noted that the DNA mixtures from both I.M.’s waistband and her left hand

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showed a “partial Y-STR DNA profile that is a mixture of DNA from at least two
male individuals.” Burns did not testify about the Y-STR results. In its closing
argument, the State acknowledged that there was “no smoking gun” from the
DNA evidence, but asked the jury to consider “what other male could she have
possibly gotten this DNA on her palm from.” The jury convicted Guzman as
charged, and he was sentenced to fourteen years’ initial confinement and six
years’ extended supervision.

¶9 Guzman then filed a postconviction motion, alleging ineffective
assistance of trial counsel. He claimed trial counsel was deficient for failing to:
(1) call Nunez-Otero as a witness because Nunez-Otero told police that when he
approached and confronted Guzman, Guzman responded, “I didn’t touch anyone”;
(2) call Officer David Waliszewski as a witness because the officer prepared a
report stating that he and his partner canvassed the neighborhood but none of the
neighbors who were home during the incident saw or heard anything; (3) elicit
testimony from Burns that the DNA showed two male sources; and (4) object to
the State’s mischaracterization of the DNA evidence in its closing argument.

¶10 The trial court denied the postconviction motion without a hearing,
concluding that there was no prejudice from any of the alleged errors. The trial
court noted there was no detail in Waliszewski’s report about where the neighbors
actually were during the incident, and, in any event, Guzman had admitted talking
to the victim, so the lack of witnesses was “not particularly relevant as to his
presence.” The trial court was also unpersuaded that Nunez-Otero’s testimony
would have changed the verdict, because Guzman had also admitted telling I.M.
she was pretty, asking whether she had a boyfriend, and giving his phone number
to her. With respect to the DNA evidence, the trial court noted that DNA had not
been used to identify the perpetrator; it simply tended to support I.M.’s allegations

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that some man had sexual contact with her as described. Finally, the trial court
concluded that the State’s argument about the DNA evidence was fair game.
Guzman appeals.

DISCUSSION

¶11 “A hearing on a postconviction motion is required only when the
movant states sufficient material facts that, if true, would entitle the defendant to
relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433.
Whether the motion alleges such facts is a question of law. See id., ¶9. If the
motion raises sufficient material facts, the trial court must hold a hearing. See id.
If the motion does not raise sufficient material facts, if the motion presents only
conclusory allegations, or if the record conclusively shows the defendant is not
entitled to relief, then the decision to grant or deny a hearing is left to the trial
court’s discretion. See id.

¶12 The trial court has the discretion to deny “even a properly pled
motion … without holding an evidentiary hearing if the record conclusively
demonstrates that the defendant is not entitled to relief.” See State v. Sulla, 2016
WI 46, ¶30, 369 Wis. 2d 225, 880 N.W.2d 659. A trial court’s discretionary
decisions are reviewed for an erroneous exercise of that discretion, a deferential
standard. See id., ¶23.

¶13 The requirements for showing ineffective assistance of counsel are
well established. A defendant must show that counsel’s performance was
deficient and that the deficiency prejudiced the defense. See State v. Balliette,
2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. “Whether counsel was
ineffective is a mixed question of fact and law.” Id., ¶19. The defendant must
show both elements of the test, and we need not address both prongs if the

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defendant fails to make a sufficient showing on one of them. See State v.
Maloney, 2005 WI 74, ¶14, 281 Wis. 2d 595, 698 N.W.2d 583.

I. The Failure to Call Nunez-Otero as a Witness

¶14 “Failure to call a potential witness may constitute deficient
performance.” State v. Jenkins, 2014 WI 59, ¶41, 355 Wis. 2d 180, 848 N.W.2d
786. Counsel’s performance is deficient if it “fell below the objective standard of
reasonably effective assistance.” See id., ¶40. If deficient performance is
established, the defendant must also show prejudice—that is, “the defendant must
show that, absent defense trial counsel’s errors, there was a reasonable probability
of a different result.” See id., ¶49.

¶15 Guzman contends that “Nunez-Otero’s testimony was important
because it contradicted testimony that Mr. Guzman apologized for hurting I.M.”
While it is true that Nunez-Otero told police that Guzman said he did not touch
anyone, we are unpersuaded that the failure to call him was prejudicial. First,
when Guzman allegedly made his denial, he was attempting to flee the scene.
Attempted flight demonstrates consciousness of guilt. See State v. Miller, 231
Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999). Second, Nunez-Otero
testifying about Guzman’s attempted flight would have corroborated testimony
from I.M., M.M., and I.M.’s mother that Guzman tried to flee. Third, both M.M.
and I.M.’s mother testified that Nunez-Otero was also present during Guzman’s
apology. Though the police report does not reflect that Nunez-Otero reported
hearing an apology, it is reasonable to infer that he may have been able to

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corroborate the others’ testimony about the apology.1 Thus, we are unconvinced
that calling Nunez-Otero to testify would have resulted in a different verdict, so
Guzman has not sufficiently demonstrated prejudice from trial counsel’s failure to
call this witness, even if this failure might be seen as deficient performance.

II. Failure to Call Officer Waliszewski as a Witness

¶16 Guzman next complains that trial counsel should have called
Waliszewski “to attack the credibility of I.M.’s account of her interaction with
Mr. Guzman.” Guzman says that the officer’s report shows “three neighbors
reported being home the whole time that this incident occurred, but they did not
see anything.” Guzman contends this is significant because the event occurred
while it was still light outside and I.M. had neighbors downstairs. Thus, the jury
never had “any opportunity to question I.M.’s version of events because it never
learned that there were people around during the incident that never saw or heard a
thing.”

¶17 First, I.M. testified that two people were walking nearby while she
was talking to Guzman, just before he assaulted her, so the jury did in fact hear
that there were others nearby. Second, according to Waliszewski’s report, at least
five neighbors were at home and none saw or heard anything involving Guzman.
However, though the report provides the neighbors’ addresses, there is no
indication of their actual proximity to I.M.’s home or porch, and the report does

1
Guzman additionally suggested that calling Nunez-Otero would have undermined
M.M.’s testimony because M.M. said he detained Guzman while the police report reflects that
Nunez-Otero said he forced Guzman to the ground and stayed on top of him until the police
arrived. However, M.M. clarified on cross-examination that “the other gentleman” had grabbed
and held Guzman while M.M. assisted.

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No. 2018AP615-CR

not indicate where most of the neighbors were in their homes, so there is no reason
to believe that any of them was even in a position to observe something at I.M.’s
home—indeed, one of the interviewees stated he was watching television.
Moreover, as the trial court noted, Guzman did not deny being at I.M.’s home,
speaking with her, or giving her his phone number. Accordingly, the failure to
call Waliszewski to testify that multiple neighbors saw nothing does not even
remotely undermine our confidence in the outcome of the trial, so trial counsel
was not ineffective in this regard.

III. Failure to Elicit Additional Testimony from the Analyst

¶18 As noted, Burns’s report indicated a “partial Y-STR DNA profile
that is a mixture of DNA from at least two male individuals” on I.M.’s waistband
and left hand. Guzman argues that “[e]liciting testimony from the analyst about
this particular profile showing at least two male individuals was vital to
illustrating to the jury [that it] should not give the DNA evidence much weight
because DNA can be transferred in a variety of ways and can remain on objects.”

¶19 However, trial counsel did elicit testimony from Burns about the
mechanics of DNA transfer, including how difficult it is to transfer DNA by touch
and how bodily fluids are a better transfer vehicle than touching. Guzman does
not explain how having Burns testify about her determination of two male
contributors is “vital” to diminishing the weight of the DNA evidence in light of
Burns’s more specific testimony about how DNA transfer works. We are
therefore unpersuaded that trial counsel’s performance in this regard was deficient
or prejudicial.

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No. 2018AP615-CR

IV. Failure to Object to the State’s Closing Argument

¶20 Related to Burns’s conclusion of two male contributors, Guzman
also argues that trial counsel:

failed to object to the [S]tate’s closing argument, which
was that that Mr. Guzman was the only source of DNA and
that he is the only place that could have come from. It
argued that the DNA evidence “corroborate[d]” the
victim’s statement because “what other men could she have
gotten this DNA on her palm from.” The [S]tate argued
that because I.M. lives with just her mom and her sister,
there is no way other way male DNA could have possibly
gotten on her palm. It reasoned that the DNA would not
have come from her grandfather or any officer, so, it must
have been from Mr. Guzman, which corroborates I.M.’s
story.

Guzman complains that the State “mischaracterized the DNA evidence to the
extent that it was misleading” because the State “was aware that the evidence
shows that there was at least two males present in the DNA sample … [but]
argued that there was only one male and that it could only have come from Mr.
Guzman.” Guzman contends this was an improper argument.

¶21 “Generally, counsel is allowed latitude in closing argument and it is
within the trial court’s discretion to determine the propriety of counsel’s
statements and arguments to the jury.”2 State v. Cockrell, 2007 WI App 217, ¶41,
306 Wis. 2d 52, 741 N.W.2d 267. “A prosecutor may comment on evidence and
argue from it to a conclusion.” Id. “Prosecutors may not ask jurors to draw

2
A failure to timely object to closing argument waives the right to appellate review of
the issue. See State v. Guzman, 2001 WI App 54, ¶25, 241 Wis. 2d 310, 624 N.W.2d 717.
However, the error may still be indirectly reviewable as part of an ineffective assistance claim.
See, e.g., State v. Duckett, 2010 WI App 44, ¶6, 324 Wis. 2d 244, 781 N.W.2d 522 (unpreserved
objection to sentencing argument reviewed in context of ineffective assistance claim).

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No. 2018AP615-CR

inferences that they know or should know are not true.” State v. Weiss, 2008 WI
App 72, ¶15, 312 Wis. 2d 382, 752 N.W.2d 372.

¶22 The relevant part of the State’s closing argument was as follows:

Also … we heard from the DNA analyst from the
state crime lab. I will admit this is no smoking gun in the
case, there is no DNA profile that says Jose Guzman
touched this girl because his DNA is all over her palms.
We don’t have a DNA profile, we don’t have a partial DNA
profile; all the analyst could say is there is male biological
material on one place on [I.M.], her left palm, that is all
we’ve got. So it is no smoking gun, but it is also not
nothing at all, it is significant evidence. Because what
other men could she have possibly gotten this DNA on her
palm from?

¶23 While this may be a hard blow, we are not persuaded it was a foul
one. See id., ¶10; Berger v. United States, 295 U.S. 78, 88 (1935). Here, there is
nothing objectively false in the State’s argument. It did not represent that there
was only a single male contributor to the DNA recovered. Burns testified that
DNA can be transferred by touch, so male DNA on I.M.’s hand is not inconsistent
with the allegation that Guzman grabbed her hands and placed them on his penis,
even though the exact source of the DNA was not identified. There is no
suggestion that any other male had touched I.M. in any fashion, so it is not an
unfair inference that Guzman was the source of some of the recovered DNA, even
if there is also a second unknown source. The State does not suggest that the
DNA conclusively established Guzman as I.M.’s assailant—in fact, it
acknowledged the limits of the DNA in that regard. Rather, the State simply
argued that the DNA evidence tended to support I.M.’s version of events because
there is no alternate version that accounts for the presence of male DNA on her
palm. We are unpersuaded that counsel was ineffective for failing to object to this
closing argument.

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CONCLUSION

¶24 Based on the foregoing, we conclude that Guzman did not plead
sufficient material facts regarding deficient performance or prejudice to entitle him
to a hearing and that the record establishes he is not entitled to relief. Thus,
whether to grant a hearing on the postconviction motion was a discretionary
decision for the trial court, and we are not persuaded that its discretion was
erroneously exercised.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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