Arellano–campos v. the State.

• Decision Date: 13 June 2011
• Docket Number: No. A10A2052.,A10A2052.
• Citation: 307 Ga.App. 561,705 S.E.2d 323
• Parties: ARELLANO–CAMPOSv.The STATE.
• Court: Georgia Court of Appeals

307 Ga.App. 561

705 S.E.2d 323

11 FCDR 90

ARELLANO–CAMPOS

v.The STATE.

No. A10A2052.

Court of Appeals of Georgia.

Jan. 19, 2011.Certiorari Denied June 13, 2011.

G. Richard Stepp, for appellant.Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.MIKELL, Judge.

Appellant Salvador Arellano–Campos was convicted of two counts of rape, based in part on evidence that he had sexually abused his girlfriend's daughter, I.M.C., since she was eleven years old. The rapes for which appellant was convicted occurred in May 2004, when I.M.C. was 17 years old. Appellant was sentenced to life in prison. On appeal from the order denying his motion for a new trial, appellant challenges the sufficiency of the evidence to support his conviction and the effectiveness of his trial counsel. We affirm.

1. Citing contradictions and inconsistencies in the evidence, appellant contends that the state failed to prove that he raped I.M.C. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and appellant no longer enjoys a presumption of innocence.¹ We do not weigh the evidence or determine witness credibility.² Rather, we determine, based on the evidence adduced at trial, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.³ Moreover, conflicts in the testimony of the witnesses, including the state's witnesses, are for the jury to resolve.⁴ “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, we must uphold the jury's verdict.” ⁵

Rape is committed when a person has carnal knowledge of a female forcibly and against her will.⁶

[T]he terms “forcibly” and “against her will” are two separate elements of proving rape. The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.... Further, force may be proved by direct or circumstantial evidence.⁷

Contrary to appellant's assertions, the evidence in the case at bar was sufficient for any rational trier of fact to find him guilty of rape. I.M.C., who was twenty years old at the time of trial, testified that she had known appellant since she was four years old, when he began dating her mother and moved in with them in Mexico. I.M.C. called him “dad” and considered him as her father. I.M.C. testified that he began sexually abusing her when she turned 11. She stated that one day, appellant told her that he loved her and ordered her to take her clothes off. Appellant threatened to harm her family if she refused. Repulsed, I.M.C. said no, but appellant removed her clothing and put his penis inside her vagina. I.M.C. testified that it hurt, and she bled. She testified that appellant told her not to tell anyone or else her family would “pay very badly.” Appellant raped I.M.C. repeatedly and abused her in other ways as well. He would scream at her, “asshole, useless, idiot good for nothing,” and once beat her with a shovel. Appellant beat I.M.C.'s nine-year-old brother repeatedly, even punching him in the face. I.M.C. testified that the police were called but did nothing because appellant bribed them.

Appellant and I.M.C.'s mother separated when I.M.C. was 13 years old. Still she did not report his abuse, fearing repercussions. Appellant returned when I.M.C. was 14 and began raping her again. She believed that he would kill her family if she told anyone. He took her to a hotel on her 15th birthday, in 2001, claiming he had a surprise for her, and then raped her again. Appellant made a videotape of the incident; he claimed that the videotape was in his mother's possession.

I.M.C. testified that the day after her birthday, appellant brought her from Mexico to the United States, promising her that she would attend school and that her mother would join them. The promises were false. Instead of permitting I.M.C. to attend school here, appellant put her to work selling cheese door-to-door. At the time of trial, she had only a sixth grade education. Appellant allowed her to speak to her family in Mexico but supervised the conversations and instructed her to say that she was studying. After living in one apartment for a year or so, I.M.C. testified that her mother learned their address and expressed an intention to visit. Appellant told I.M.C.'s mother that they were already back in Mexico, which was false. Then appellant moved I.M.C. to a different apartment and never allowed her to call her mother again. According to I.M.C., appellant installed a lock on the front door that could only be opened from the outside, and he kept I.M.C. locked in. He made her cook and do laundry and screamed at her, “idiot, ... stupid imbecile.” I.M.C. testified that appellant continued to force her to have sexual intercourse and to threaten to harm her family if she refused.

Finally, on May 17, 2004, I.M.C. saw a taxi driving by and flagged down the driver, who took her to the Norcross police station. She testified that she escaped from the apartment through the window. I.M.C. told the police that appellant generally raped her “every third day,” but had raped her on each of the two days before she came to the police station. She testified that she had been watching cartoons when appellant told her to turn off the television and unbutton her pants. She tried to refuse him but he threatened her family.

At the police station, officer David Aguilar interviewed I.M.C., who stated that appellant, whom she referred to as her mother's boyfriend, had touched her and penetrated her. Aguilar testified that I.M.C. was crying and embarrassed during the interview. After I.M.C. gave a statement to Aguilar, she was taken to the Gwinnett County Sexual Assault Center, where she was examined by Katherine Boyd “Kabee” Johnston, an expert sexual assault nurse examiner. Sergeant Edward Restrepo of the Gwinnett County Police Department assisted in translating for I.M.C., as she spoke only Spanish.

Johnston testified that I.M.C. told her, through Restrepo, that her “stepfather” had been vaginally penetrating her since she was 11 years old and that the last sexual assault had occurred 18 hours earlier. The parties stipulated that samples collected from the vaginal examination performed by Johnston failed to reveal the presence of seminal fluid. Johnston testified, however, that due to the physical characteristics of the vagina and the fact that she used dry swabs to collect the samples, there could have been seminal fluid in I.M.C.'s body that the swabs did not pick up. Johnston also testified that her examination revealed that I.M.C. “had little pieces of hymen left,” which would be consistent with a person having intercourse for a “fairly long period of time.” I.M.C. was 17 years old at the time of the examination. Finally, Johnston testified that I.M.C.'s statement that she had been vaginally penetrated since she was 11 years old, most recently 18 hours earlier, was consistent with the physical examination.

The parties stipulated that Restrepo advised appellant of his constitutional rights in Spanish and that he freely, willingly and voluntarily waived those rights before making a statement to the police. Restrepo testified that appellant, who was in his 40s, initially stated that he lived with I.M.C. in a “father-daughter type relationship” and that he had dated I.M.C.'s mother in Mexico. Appellant repeatedly denied having any sexual contact with I.M.C. until detectives confronted him with the possibility that semen evidence may have been collected from her. Appellant then admitted that he had sexual intercourse with I.M.C. two or three times. Appellant claimed that I.M.C. initiated the sex by grabbing his penis and that he told her, “No, we can't do this; I'm your father.” Over his objection, a portion of appellant's videotaped statement was played for the jury. When questioned about the rapes for which he was indicted, appellant stated: “Well, what happened was I didn't feel like doing it but she provoked me.”

Appellant presented the testimony of two witnesses and testified in his own behalf. I.M.C. had obtained a business card from the taxi driver who took her to the police station, and he had written his name and cell phone number on the card. The taxi driver identified the card but did not recognize I.M.C. and testified that he had never helped anyone climb out of a window.

Jose Espinosa Guzman, appellant's brother-in-law, testified that appellant lived with him for a year in 2001 but then left with his “mate.” Guzman testified that he did not know the name of appellant's “mate” although he had known her since she was a little girl. According to Guzman, appellant introduced the victim as his “girlfriend,” and they seemed to have a “good, normal,” and “intimate” relationship.

Finally, appellant testified. He admitted that he had sexual relations with I.M.C. “more than once” and claimed that they lived “like a couple” for more than 16 months. According to appellant, they first had sexual relations when I.M.C. was 16 years old. Appellant claimed that their relationship was consensual and that they “got along marvelously.” Appellant denied ever threatening to harm I.M.C.'s family if she refused to have sex with him. Appellant testified that he lied to the police when he told them that his relationship with I.M.C. was that of father and daughter. He also testified that he lied to the police when he stated that he had a romantic relationship with I.M.C.'s mother. Appellant claimed that the police forced him to say that he had been having sex with I.M.C. since she was 11 years old by verbally mistreating him and threatening to kill him. Restrepo testified in rebuttal that he did not threaten or verbally abuse appellant when interviewing him.

Appellan...