Alvarado v. State

• Decision Date: 25 June 2021
• Docket Number: A21A0214
• Citation: 360 Ga.App. 113,860 S.E.2d 886
• Court: Georgia Court of Appeals
• Parties: ALVARADO v. The STATE.

360 Ga.App. 113

860 S.E.2d 886

ALVARADO

v.The STATE.

A21A0214

Court of Appeals of Georgia.

June 25, 2021

Jessica Ruth Towne, Lawrenceville, for Appellant.

Penny Alane Penn, Sandra Ann Partridge, for Appellee.

Hodges, Judge.

Following a jury trial in which he was accused of sexual crimes against three young brothers, Juan Fernando Alvarado was convicted of two counts of aggravated child molestation, three counts of child molestation, and one count each of attempted child molestation and solicitation of sodomy of a child under 18 years of age.¹ He appeals from the partial denial of his motion and amended motion for new trial,² contending that the evidence was insufficient to sustain his conviction for attempted child molestation of one of the brothers, M. R.,³ and that his right to be present at critical stages of his trial was violated by his absence from bench conferences when discussions occurred related to jury strikes. For the reasons that follow, we affirm.

"On appeal from his criminal conviction, [Alvarado] is no longer presumed innocent and all of the evidence is viewed in the light most favorable to the jury's verdict." Meddings v. State , 346 Ga. App. 294, 816 S.E.2d 140 (2018).

So viewed, the evidence adduced at trial shows that Alvarado lived with his cousin's family for seven or eight years. During that time, he sexually abused his cousin's three young boys. After the boys’ parents separated, the boys eventually told one another and their parents about the sexual abuse. When the boys’ father confronted Alvarado about the sexual abuse, Alvarado did not deny it. He only hung his head and did not speak.

The first brother, L. R., testified that Alvarado began sexually abusing him when he was about four years old. Alvarado forced the boy to touch Alvarado's penis and to engage in oral and anal sex many times, sometimes in exchange for money. Alvarado threatened to kill the child with a machete if the child told anyone about what had happened.

The second brother, C. R., testified that Alvarado had sat close to him, touched his penis and held him closely around the shoulders. When the boy was about 12, Alvarado massaged the child's penis and showed him a $20 bill. Alvarado threatened to kill the boy with a machete if he told anyone. The boy had previously seen a machete under Alvarado's bed.

The crimes committed against the third brother, M. R., are the only convictions Alvarado challenges on appeal. When M. R. was 13 years old, Alvarado came home drunk from a party. The victim was sitting on the couch watching a movie. He testified that Alvarado "started attacking" him, trying to "pull my shirt up and stuff like that." The victim knew Alvarado was "trying to rape me by the way he was touching me," because Alvarado was "aggressive" in using his hands to touch the victim's chest and arms. The victim refused to let Alvarado pull down his pants, and testified of the incident, "I wasn't going to let that happen.... I didn't want that to scar me for life." The victim eventually succeeded in fighting off the drunken Alvarado, who went to another room and "passed out."

1. Alvarado argues that his conviction for attempted child molestation of M. R. cannot be sustained. He contends that the acts the child described do not inherently show an intent to molest and, without more, do not show any substantial step toward sexual molestation.⁴ We disagree.

"A person commits the offense of child molestation when such person: ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]" OCGA § 16-6-4 (a). A person commits a criminal attempt when, "with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1.

Citing testimony from a school counselor in whom the victim confided, Alvarado argues that the counselor interpreted the incident as involving physical, rather than sexual, abuse, and that the evidence of Alvarado's touching the victim's chest and arms was thus insufficient to show intent and a substantial step toward the crime.

It is well-settled that the testimony of a single witness, in this case the child-victim, is sufficient to establish a fact. Burke v. State , 316 Ga. App. 386, 390 (2), 729 S.E.2d 531 (2012). Further, Alvarado's "[i]ntent, which is a mental attitude, can be inferred, and the law accommodates this. Whether a defendant possesses the requisite intent is a question of fact for the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive." (Citations and punctuation omitted.) Collins v. State , 276 Ga. App. 358, 359 (1), 623 S.E.2d 192 (2005) (finding jury was authorized to infer requisite intent for attempted child molestation where defendant touched victim's private area, despite his testimony that he did so only to keep her from falling off a four-wheeler). Here, the jury clearly believed the victim's testimony that Alvarado aggressively touched his chest and arms and attempted to pull down his pants, such that the victim fought to protect himself, and that Alvarado's actions indicated he had taken a substantial step toward molesting the child. The jury clearly disbelieved the counselor's interpretation that the victim had only discussed or been subject to physical abuse. See Gearin v. State , 255 Ga. App. 329, 333 (1), 565 S.E.2d 540 (2002). "We will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous. " (Citation and punctuation omitted; emphasis supplied.) Collins , 276 Ga. App. at 359-360 (1), 623 S.E.2d 192 (finding that even if the finding that the accused had the intent to commit the crime is supported by weak evidence, the verdict will not be set aside on that ground). The evidence was sufficient.

2. Alvarado argues that his right to be present at critical stages of his trial – specifically, during three bench conferences during voir dire – was violated. We disagree.

"[T]he Georgia Constitution guarantees [a] criminal defendant[ ] the right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court. It also has long been established that proceedings at which the jury composition is selected or changed are critical stages at which the defendant is entitled to be present." (Citations and punctuation omitted.) Zamora v. State , 291 Ga. 512, 517-518 (7) (b), 731 S.E.2d 658 (2012). "[W]e have repeatedly held that a defendant has the right to participate in a bench conference during which a prospective juror or a trial juror is discussed and removed." Champ v. State , 310 Ga. 832, 840 (2) (b), 854 S.E.2d 706, 714 (8) (b) (2021). Additionally, "[w]here the accused is involuntarily absent from the proceedings, the trial judge should have no communications with a juror about the case, except as to matters relating to the comfort and convenience of the jury." (Citation and punctuation omitted.) Zamora , 291 Ga. at 518 (7) (b), 731 S.E.2d 658.

Alvarado was present in the courtroom during voir dire, which involved individual and general group questioning, as well as sequestered questioning. Alvarado knew what was happening, as the trial court explained in open court the process of selecting a jury and counsels’ role in asking questions to assess the partiality or impartiality of each potential juror, so that a proper jury could be selected. "Although [Alvarado] was in the courtroom during trial when several bench conferences occurred, [he] was not physically present at the bench during the conferences. [He] thus contends that [he] was not present at all critical stages of [his] trial and that [his] conviction must therefore be reversed." Kennedy v. State , 274 Ga. 396, 397 (3), 554 S.E.2d 178 (2001).

We note that despite the fact that Alvarado's counsel sought to strike all three potential jurors for cause because of their potential for bias against him, counsel did not ask that Alvarado be included in any of the bench conferences, Alvarado has not asserted that his counsel was ineffective.⁵ We will outline the facts of each bench conference in turn.

(a) Potential Juror D. M.: The voir dire transcript shows that D. M. was questioned in open court about his knowledge of his wife's job as a school counselor, where she sometimes dealt with reports of child sexual abuse. D. M. stated that he could be impartial, but also said that a child abuse case was "difficult," and that "when you hear a list of charges ... [and] based on the things that my wife has told me about, I mean, it's highly likely somebody's involved in something they shouldn't have ...."

Alvarado's counsel said in front of Alvarado that he wanted to make a motion, but did not say what motion. The trial transcript indicates that a brief bench conference occurred. During the bench conference, Alvarado's counsel said that while potential juror D. M. wanted to be impartial, "he's leaning. ... [H]e's already predetermined to some extent, and would have to be moved off that position." The State countered that the juror simply found a child molestation case distasteful. The trial judge denied the motion to strike for cause, determining that D. M. could be impartial. D. M. was not dismissed from the jury pool and was sent out on break with the other potential jurors.

The transcript shows that the following day, the trial court gave counsel time to discuss potential jurors with their clients. After this discussion time, Alvarado's defense counsel then used a peremptory strike to remove D. M.

(b) Potential Juror H.⁶ : After a break in voir dire, the trial court called Juror H. to the bench, and the State approached. Juror H. stated that her son was the victim in a pending child molestation case prosecuted by one of the State's...