Barraza v. State

• Decision Date: 22 December 2020
• Docket Number: A20A1657
• Citation: 853 S.E.2d 132,358 Ga.App. 34
• Parties: BARRAZA v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 34

853 S.E.2d 132

BARRAZA

v.The STATE.

A20A1657

Court of Appeals of Georgia.

December 22, 2020

Eric C. Crawford, Monroe, for Appellant.

Kenneth W. Mauldin, Austin B. Jackson, for Appellee.

Mercier, Judge.

A jury found Enoc Barraza guilty of three counts of child molestation. Following the denial of his motion for new trial, Barraza appeals, asserting that the trial court erred in overruling his objection to expert testimony and in limiting his cross-examination of a witness. We find these claims to be without merit and affirm.

Barraza was first tried in February 2018, but the jury deadlocked and the trial court declared a mistrial. He was tried again in September 2018. Construing the evidence from the second trial in favor of the verdict, the record shows that Barraza was in a relationship with the victim's mother, and that the victim would visit her mother every other weekend. In April 2017, when the victim was 13 years old, Barraza showed her a dildo and explained to her "what it was for." Barraza also touched her "boobs on [ ] top of [her] clothes." In a letter to her step-sister, the victim further reported that Barraza "tried to pull down [her] pants and underw[ear] and stick his d*** in [her] p****," asked her how much she would pay him to perform oral sex on her, and told her that when she came over again he was going to have sex with her.

The victim's forensic interview was admitted at trial and played for the jury. In the interview, the victim stated that Barraza touched her on her vagina and buttocks on the outside of her clothes and that Barraza frequently asked her to have sex with him. The State also presented evidence of Barraza's prior acts against minor girls: touching the vaginal area of a two-year old girl, enticing an 11-year-old for indecent purposes, and having sex with a 11-year-old.

Following the presentation of this evidence, the jury found Barraza guilty of three counts of child molestation for touching the victim's vagina, breast, and buttocks. Barraza filed a timely motion for new trial, which the trial court denied. This appeal followed.

1. Barraza argues that the trial court erred in overruling his objection to the testimony of the forensic interviewer, Alicia Chandler, who was qualified as an expert in the process of disclosure, dynamics of child sexual abuse, and forensic interviewing. He complains that it was plain error to allow Chandler's testimony in the absence of a written report of her findings, and that such error allowed the State to bypass the statutory reciprocal discovery process to his detriment. Barraza asserts that without a report, he had no notice of Chandler's testimony so that he could counter her opinion either through research or an expert of his own.

During a hearing prior to trial, the State explained that it intended to qualify Chandler as an expert and admit her forensic interview of the victim. Barraza's counsel objected to Chandler testifying without a report of her opinions from the forensic interview: "opinions that were generated from her participation in this case from ... her interview – her examination ... of the child in this case, then I think they should be reduced to writing." The trial court declined to exclude Chandler's testimony, ruling that defense counsel would be able to cross-examine her, the report does not exist, and "the report itself would be the forensic interview." At trial, after the State tendered Chandler as an expert, defense counsel asked Chandler if she had prepared a report of her forensic interview of the victim. Chandler stated that she had not prepared a report because the video recording of the forensic interview speaks for itself. Defense counsel again objected that without a report to document or reduce to writing Chandler's expert opinion, the State failed to comply with the discovery statute. The trial court overruled counsel's objection.

OCGA § 17-16-4 (a) (4) requires the prosecuting attorney to provide to the defendant a report of "any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the state intends to introduce in evidence in its case-in-chief or in rebuttal the results of the physical or mental examination or scientific test or experiment." In order to exclude expert witness testimony pursuant to this Code section, a defendant must show that the statute applies to the expert testimony. See Green v. State , 307 Ga. 171, 172 (1), 835 S.E.2d 238 (2019). If the statute does apply, "the State's failure to comply with OCGA § 17-16-4 (a) (4) does not result in the automatic exclusion of the testimony at issue. The State would have been prohibited from introducing such evidence only upon a showing of both prejudice to appellant and bad faith by the State." Murphy v. State , 299 Ga. 238, 243 (3), 787 S.E.2d 721 (2016).

Assuming without deciding that a forensic interview qualifies as a physical or mental examination or a scientific test or experiment under OCGA § 17-16-4 (a) (4), Barraza has not shown that he was prejudiced by Chandler's failure to prepare – and the State's failure to disclose – an expert report of Chandler's forensic interview with the victim. See Williams v. State , 356 Ga. App. 19, 28 (2), 846 S.E.2d 190 (2020) (physical precedent only as to Division 2) (the purpose of Georgia's Criminal Discovery Act is "to promote fairness and efficiency in criminal proceedings, and to prevent surprise and trial by ambush." (citations and punctuation omitted)). Not only was defense counsel provided the video recording of the forensic interview, but he also had the benefit of Chandler's testimony from the first trial. The trial court did not abuse its discretion in allowing Chandler's testimony. See Nichols v. State , 278 Ga. App. 46, 48 (1), 628 S.E.2d 131 (2006) (trial court's admission of expert testimony is reviewed for abuse of discretion); see also Green , supra at 172 (1), 835 S.E.2d 238 (trial court's ruling on compliance with criminal discovery statute is reviewed for an abuse of discretion).

2. Barraza argues that the trial court erred in sustaining the State's objection to his cross-examination of a detective. "Like most questions about the admissibility of evidence, the scope of cross-examination is committed in the first instance to the sound discretion of the trial court, and we review a limitation of...