Cruz v. State

• Decision Date: 26 October 2018
• Docket Number: A18A1082
• Parties: CRUZ v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 810

821 S.E.2d 44

CRUZ

v.The STATE.

A18A1082

Court of Appeals of Georgia.

October 26, 2018

Micah Jay Gates, for Appellant.

Herbert McIntosh Poston Jr., Christina Marie Antalis, for Appellee.

McMillian, Judge.

Antonio Cruz appeals from the denial of his motion for new trial after a jury convicted him of rape, aggravated sodomy, burglary in the first degree, aggravated assault, false imprisonment, and terroristic threats.¹ Cruz argues on appeal that there was insufficient evidence to support his conviction for terroristic threats; that the trial court erred by not admitting evidence which contained a prior inconsistent statement; and that his constitutional right to cross examine a witness was violated. Finding no error, we affirm.

Viewed in the light most favorable to the verdict,² the evidence at trial showed that the victim and Cruz married in 2006 and have three minor children together. Prior to September 2014, they had been having marital problems, prompting the victim to call the police on several occasions because she felt like she was in danger. On May 29, 2014, the victim moved out of the house and into her own apartment. Then in July 2014, she sought a temporary restraining order, claiming that Cruz was threatening her, would frequently call and text her, and went to her apartment and physically assaulted her.

On September 18, 2014, the victim was alone in her apartment while her children with Cruz were spending the night at his apartment. She was asleep in her bedroom when sometime around midnight, Cruz entered her apartment using a spare key taken from their son’s book bag. The victim said that she heard a noise at her bedroom door and then Cruz broke the door down. He jumped on her bed and when she started to yell, he called her names

and told her to "shut up" or he would kill her. Cruz then put his hands around her neck and applied pressure until she fainted, later waking up on the floor at his feet. After she awoke, Cruz said he wanted to talk about rumors he had heard that she was seeing someone else, which she denied. The victim agreed to talk with Cruz but asked that they go downstairs, explaining at trial that she was hoping someone else would be able to hear them. Once the victim went downstairs, Cruz threatened her, telling her that he had a gun in his bag and that he was going to kill her and then kill himself. He repeatedly called her names and stated she would regret reporting this incident because if he were to go to jail, he was going to have her family in Mexico killed. He then had sexual intercourse with her on the couch, performed oral sex on her, and bit her on her back.

At some point, the victim observed a large kitchen knife on her kitchen table, which she did not remember putting there. Cruz asked her to go to the kitchen with him several times but she avoided doing so, and he stood by the front door to prevent her from leaving. The victim was worried that he was going to kill her, and she spoke to him about her concerns for their children, who were still at Cruz’s house. Cruz forced the victim to drive to his apartment where they checked on the children and then returned to her apartment. Once there, the victim pretended to be calm so Cruz would not think she was going to call 911. When Cruz eventually left, the victim called her adult daughter, who lived nearby, and asked her to call the police.

The police responded to the 911 call to find the victim and her daughter at the scene, and the victim was visibly upset and crying. While the police officers were there, she repeatedly expressed her concerns for her children’s safety, cried, and pleaded for the police to hurry and check on them because Cruz said he had a gun.

Officers went to Cruz’s house to check on the children. They attempted to talk with Cruz outside of his house, but Cruz refused to come out, stating that he was arrested last time he went outside his house to speak with police. Although the officers made no mention of any allegations by the victim of violence or rape, Cruz told them that the victim had hurt herself before and then blamed him for it and that she had previously accused him of rape. When communicating with the police, he said that he knew he was going to be arrested and that once he spoke to his lawyer, he would turn himself in, but the officers continued to try to persuade him to come outside and talk with them because they were concerned about the children’s safety. Cruz came outside approximately two hours after police arrived, and the officers transported him to the police station.

Meanwhile, the police continued to interview the victim at her apartment before she was taken to the hospital. During that time and while at the hospital, the victim was still distraught, expressed concern for her children, and appeared to have been traumatized. After Cruz was convicted and his motion for new trial was denied, this appeal followed.

1. Cruz argues that there was insufficient evidence to sustain his conviction for terroristic threats because the victim’s testimony was uncorroborated.³ He asserts that the testimony showing that the victim was upset and crying after the incident was not severe enough to be considered corroboration of any alleged threats because anyone who had just been the victim of rape, aggravated sodomy, aggravated assault, and false imprisonment would be upset and crying, without regard to any threats.

The standard of review for cases contesting the sufficiency of the evidence is whether, in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under OCGA § 16-11-37, "[a] person commits the offense of a terroristic threat when he or she threatens to ... [c]ommit any crime of violence ... [w]ith the purpose of terrorizing another[.]" OCGA § 16-11-37 (b) (1) (A) & (2) (A). The statute provides, however, that "[n]o person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated." OCGA § 16-11-37 (b) (3). Nevertheless, only "[s]light circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value." (Citation omitted.) Lambert v. State , 325 Ga. App. 603, 606 (2), 754 S.E.2d 392 (2014) ; see also Boone v. State , 155 Ga. App. 937, 939 (1), 274 S.E.2d 49 (1980).

Therefore, "the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged." (Citation omitted.) Pringle v. State , 281 Ga. App. 235, 237 (1) (a), 635 S.E.2d 839 (2006) ; see also Atkins v. State , 304 Ga. 240, 242 (2), 818 S.E.2d 567 (2018) (explaining the independent corroborating evidence is required to support statutory rape conviction). Such "corroboration can consist of the victim’s demeanor after the threat is communicated" and wounds

or other injuries to the victim. (Citations and punctuation omitted.) Nelson v. State , 277 Ga. App. 92, 97 (1) (c), 625 S.E.2d 465 (2005) (evidence that victim injured during incident and witness’s testimony as to her frightened state sufficient corroboration for terroristic threat conviction); see also Tidwell v. State , 312 Ga. App. 468, 470 (1) (a), 718 S.E.2d 808 (2011) (victim’s testimony of threat corroborated by independent evidence of injury to her face and officer’s testimony that victim was crying, looked as if she had been crying, and was scared); Smith v. State , 273 Ga. App. 843, 844, 616 S.E.2d 183 (2005) (threat corroborated by evidence that victim was scared and crying).

Cruz admitted in his statement to police that he was in the victim’s apartment at around 11:30 p.m. that night and said that he hit her with a box while moving it, causing her to yell. At trial, he testified that he went to the victim’s apartment at around 11:40 or 12:00 p.m., using his son’s keys to let himself in. Cruz went upstairs into the victim’s bedroom. He admitted that the victim became scared and very nervous, collapsing to her knees on the floor, while he was there. He also admitted that the victim screamed when she became scared after he kicked a box. The victim also testified that after the incident, she was visibly upset and crying and told the police multiple times that she feared for her children since Cruz said he had a gun and threatened to kill her children and her. She was insistent that the police go to Cruz’s house to make sure her children were safe. When the victim was at the hospital, the nurse testified that she looked like someone who had been traumatized and continued to express concern for her children’s safety. Additionally, the victim had a bite mark on her back and bruising on her arms, knees, legs, shoulder, and chest. We find that this evidence, including Cruz’s statement and testimony, was sufficient to corroborate the victim’s testimony.

2. Cruz next asserts that the trial court erred in denying his request to admit into evidence the physical copy of a letter containing what Cruz contends was a prior inconsistent statement by the victim. We review the trial court’s ruling on the admissibility of the letter for a clear abuse of discretion. Ramirez v. State , 303 Ga. 232, 235 (II), 811 S.E.2d 416 (2018).

Prior to the victim’s trial testimony and outside the jury’s presence, the defense sought a ruling on the admissibility of a letter, written on several pages of note paper, sent by the victim to Cruz while he was in jail. The State objected to the admission of the letter on the grounds that it had been altered: portions were missing and parts of it were highlighted and underlined. Moreover, although the victim admitted writing the majority of the letter, she denied writing the...