Bernal v. State

• Decision Date: 04 March 2021
• Docket Number: A20A1648
• Citation: 358 Ga.App. 681,856 S.E.2d 64
• Parties: BERNAL v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 681

856 S.E.2d 64

BERNAL

v.The STATE.

A20A1648

Court of Appeals of Georgia.

March 4, 2021

Angela Catherine Trethaway, for Appellant.

Randall Joseph Ivey, Cliff Head, Shannon Glover Wallace, for Appellee.

Hodges, Judge.

Following a jury trial, the Superior Court of Cherokee County entered a judgment of conviction against Estuardo Bernal on one count each of child molestation ( OCGA § 16-6-4 ), rape ( OCGA § 16-6-1 ), and terroristic threats ( OCGA § 16-11-37 ). Bernal appeals from the trial court's denial of his motion for new trial as amended, arguing that: (1) the trial court erred in denying his special demurrer, motion to sever, and motion to suppress; (2) the evidence was insufficient to support his convictions; and (3) he received ineffective assistance of trial counsel at sentencing. Because we conclude that the trial court failed to exercise discretion in reviewing Bernal's arguments based upon OCGA §§ 5-5-20 and 5-5-21, we vacate in part the trial court's order denying Bernal's motion for new trial and remand this case for further proceedings consistent with this opinion.¹ To the extent Bernal's enumerations concerning the trial court's pre-trial rulings affect the universe of evidence to be considered by the trial court on remand, we have reviewed those arguments and find no error. Therefore, we affirm the remainder of the trial court's order.

Viewed in a light most favorable to the verdict,² the evidence revealed that Bernal lived with his long-time girlfriend ("the adult victim"), their two children, and the adult victim's daughter, J. G. ("the child victim"), in Canton, Cherokee County. Bernal's relationship with the adult victim was often turbulent, and the child victim frequently heard the pair fighting and her mother crying. The child victim also witnessed Bernal hit the adult victim repeatedly. By 2015, the adult victim attempted to avoid Bernal by retreating to their childrens’ room when he arrived home from work. However, the adult victim described an incident in which Bernal chased her down some stairs, caught her on a couch, and forcibly had sexual intercourse with her as she fought him and told him to stop. She relayed another occasion in which Bernal stormed the childrens’ room, dragged the adult victim from the room, and again forced himself on her against her will.

The day after Bernal dragged the adult victim from their childrens’ room, she went to the Canton police station to report the assault. An officer directed her to a local hospital for testing, which revealed the presence of sperm, bruising, and a rash. The next day, the adult victim visited the station again and indicated she did not want to pursue charges against Bernal. She suggested that she did not want to proceed because a man with whom she had recent relations was no longer in the country and that, if Bernal found out about him, Bernal would have killed her.

In November 2015, Bernal moved out of the family's apartment, but begged the adult victim to reconcile in February 2016. The two began dating again, and Bernal supervised the children when the adult victim worked at night. Thereafter, Bernal twice visited the adult victim at her job after taking her children to her sister's house. During the second visit, which occurred after the adult victim informed Bernal that she no longer wished to date him, Bernal told her that she "was going to die and ... something was going to happen to [her] in one week if [she] didn't go back with him." As the adult victim pleaded for Bernal to explain himself, he returned to his truck and said, "I'm going to kill you" as he drove away. When the adult victim went to retrieve their children, they exclaimed, "daddy's going to kill you."³

That night, the adult victim again called the police. As the adult victim ran to her door to admit a responding police officer, the child victim stopped her and said, "Mommy, I've got something to tell you." The child victim then told the adult victim that, one evening when she was sleeping in the same bed as Bernal, Bernal began pulling her head toward his penis as she tried to push him away. The child victim also reported the incident to the responding officer.

A Cherokee County grand jury indicted Bernal for one count each of child molestation (against the child victim), rape (against the adult victim), and terroristic threats. Bernal did not testify at trial. The trial jury returned verdicts of guilty against Bernal on each count of the indictment, and the trial court denied Bernal's motion for new trial as amended. This appeal followed.

1. Considering Bernal's fourth enumeration first,⁴ he initially states that the evidence was insufficient to support his convictions. However, Bernal's actual argument is that the successor judge who considered his amended motion for new trial "declined to make a ruling on the credibility of witnesses or conflicts in witness testimony." Properly considered, then, Bernal contends that the trial court failed to properly apply OCGA §§ 5-5-20 and 5-5-21. Because we conclude that the successor judge failed to exercise discretion in the review of Bernal's "general grounds" argument, we vacate that portion of the trial court's order and remand this case to allow the trial court to exercise its discretion in considering Bernal's argument.

It is well settled that

[e]ven when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is "contrary to the principles of justice and equity," OCGA § 5-5-20, or if the verdict is "decidedly and strongly against the weight of the evidence." OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial — commonly known as the "general grounds" — require the trial judge to exercise a broad discretion to sit as a "thirteenth juror." A trial court reviewing a motion for new trial based on these grounds has a duty to exercise its discretion and weigh the evidence and consider the credibility of the witnesses. If the trial court performs this duty, then we have no basis for reviewing the court's decision, as such a decision is one that is solely within the discretion of the trial court.

(Citations and punctuation omitted; emphasis supplied.) Lundy v. State , 341 Ga. App. 767, 769 (2), 801 S.E.2d 629 (2017). To that end, "[i]t is ... true that where, as in this case, the judge who hears the motion for a new trial is not the same judge as the one who presided over the original trial, the discretion of the successor judge is narrower in scope." State v. Harris , 292 Ga. 92, 95, 734 S.E.2d 357 (2012). However, "after a thorough review of the case, even a successor judge may exercise a significant discretion to grant a new trial on the general grounds." (Citation omitted.) Wiggins v. State , 330 Ga. App. 205, 211 (c), 767 S.E.2d 798 (2014) ; see also White v. State , 293 Ga. 523, 525 (2), n. 4, 753 S.E.2d 115 (2013).

Here, the judge who presided over Bernal's trial retired before the hearing for Bernal's motion for new trial, at which the successor judge presided. During the motion for new trial hearing, the successor judge cited OCGA §§ 5-5-20 and 5-5-21 and stated that

it would be inappropriate for this Court to make a ruling sitting as a 13th juror. Because this Court did not conduct the trial, this Court cannot rule on the credibility of the witnesses nor consider ... the conflicts in the testimony of the witnesses at trial, because I was not the Trial Judge. So I'm not going to consider that ground. I think it would be inappropriate and it would be unfair. I was not the Trial Judge and I think that you have to be the Trial Judge to be able to rule as a 13th juror. Unless I'm wrong, which I don't think I am, I can't judge the credibility of the witnesses. I wasn't there.

In his written order, the successor judge stated only that he could not "make a ruling on the credibility of witnesses and conflicts in testimony given the witnesses’ testimony was not observed by the Court." However, the successor judge did review the transcripts from Bernal's trial, and concluded that the jury's verdict was not "contrary to law" and that "[t]here was substantial evidence to support" the verdict. Moreover, the successor judge concluded that "a rational trier of fact could find [Bernal] guilty beyond a reasonable doubt of the crimes for which he was charged." As a result, the successor judge denied Bernal's motion for new trial as amended.

In view of the successor judge's statements during Bernal's motion for new trial hearing and the trial court's reliance upon the standard in Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in its order denying Bernal's motion,

there is no evidence that the successor judge exercised discretion, weighed the evidence, and determined as the ‘thirteenth juror’ whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. The order denying [Bernal's] motion for new trial shows that the trial court made only the legal determination that the evidence was sufficient under the standards of Jackson v. Virginia .

Wiggins , 330 Ga. App. at 211 (c), 767 S.E.2d 798. To the contrary, the successor judge specifically rejected any notion that he could exercise discretion in evaluating Bernal's general grounds argument. This was error. See White , 293 Ga. at 525 (2), n. 4, 753 S.E.2d 115 ; Wiggins , 330 Ga. App. at 211 (c), 767 S.E.2d 798.

Where, as here, the record reflects that the trial court applied an incorrect standard of review and, in so doing, failed to exercise its discretion and weigh the evidence in ruling on the merits of claims under OCGA §§ 5-5-20 and 5-5-21, the appellate court must vacate the judgment and remand the case to the trial court for consideration of the motion under the proper standard of review.

Walker v. State , 292 Ga. 262, 264-265 (2), 737 S.E.2d 311 (2013). Therefore, we vacate that portion of the...