Garza v. State

• Citation: 347 Ga.App. 335,819 S.E.2d 497
• Decision Date: 19 September 2018
• Docket Number: A18A1081
• Parties: GARZA v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 335

819 S.E.2d 497

GARZA

v.The STATE.

A18A1081

Court of Appeals of Georgia.

September 19, 2018

Veronica Margaret O'Grady, for Appellant.

Holli Griner Martin, Bradford Lee Rigby, Albany, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Simon Salinas Garza was convicted of aggravated child molestation, aggravated sexual battery, two counts of child molestation, and enticing a child for indecent purposes. On appeal, he challenges the sufficiency of the evidence supporting the conviction for enticing a child and the sufficiency of the evidence of venue supporting one of the child molestation convictions, but we find the evidence sufficient to authorize convictions on both counts. He also argues that he received ineffective assistance of trial counsel in several respects, but we find that he has not met his burden of showing both that his trial counsel performed deficiently and that he was prejudiced by the deficient performance. So we affirm.

1. Sufficiency of the evidence.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis omitted).

So viewed, the evidence showed that Garza was married to the grandmother of the victim, C. D. In November 2015, C. D.—then 13 years old—disclosed that Garza had molested her on numerous occasions over the course of several years. C. D.’s outcry occurred after her mother overheard C. D. and a female cousin of similar age discussing how Garza made them feel uncomfortable. C. D. had not previously revealed the abuse because Garza told her that if she did so, it would cause her medically-fragile grandmother to go into shock, have a stroke, and die.

C. D. testified that on several occasions, beginning when she was around 10 years old, Garza touched her chest and genitals over and under her clothing, inserted his finger and his penis into her vagina, and touched her unclothed anus with both his finger and his penis. These acts occurred in several locations: Garza’s house in Jonesboro, Georgia; two different houses in which C. D. had lived in Fitzgerald, Georgia; and a motel in Fitzgerald, Georgia where Garza and C. D.’s grandmother stayed while visiting. On those visits, C. D. and her cousins often would spend the night at the motel and C. D. would share a bed with Garza. On some occasions, Garza told C. D. to come with him and the grandmother to the motel. Although C. D. told Garza to stop touching her, he continued to do so. Garza told C. D. that, despite his actions, she was still a virgin because he did not penetrate her enough to break her hymen.

After C. D. disclosed the molestation, she gave a forensic interview in which she repeated those disclosures. A physical examination revealed that C. D.’s hymen had gaps of missing tissue, which suggested previous sexual activity.

When Garza first learned of C. D.’s outcry, he contemplated fleeing and said to the grandmother, "Why couldn’t that young ‘un have kept quiet until after the holidays?" In a custodial interview after being arrested, Garza denied molesting C. D., but he stated that, due to erectile dysfunction, he could not have sufficiently penetrated C. D. to break her hymen and, in his words, take her virginity.

The state presented other acts evidence that Garza previously had been convicted of child molestation and that he had impregnated his 19-year-old stepdaughter after drugging her drink. When C. D.’s grandmother married Garza, she knew that Garza was on the sex offender list and had a child with his stepdaughter, but she was not aware of his prior convictions.

(a) Conviction for enticing a child for indecent purposes.

Garza challenges the sufficiency of the evidence supporting his conviction for enticing a child for indecent purposes. A person commits this offense "when he or she solicits, entices, or takes any child under the age of 16 to any place whatsoever for the purpose of child molestation or indecent acts." OCGA § 16-6-5 (a). The state accused Garza of committing this offense by soliciting C. D. to go to the motel for the purpose of child molestation.

A conviction for enticing a child requires evidence of "a joint operation of the act of [soliciting] a child and the intention to commit acts of indecency or child molestation." Lasseter v. State , 197 Ga. App. 498 (1), 399 S.E.2d 85 (1990). Stated otherwise, for Garza’s conviction to be affirmed there must be evidence that he "himself [solicited C. D. to the motel] with the present intention to commit acts of indecency or child molestation after [she] had been [solicited] there[.]" Id. (citation and emphasis omitted). C. D. testified that sometimes Garza "would tell [her] to come with [him and her grandmother]" to the motel. C. D.’s testimony and the statement she made in the recorded forensic interview also indicated that Garza regularly molested her when she went with him and her grandmother to the motel. So, unlike in Lasseter v. State , supra at 499-500 (1), 399 S.E.2d 85, which Garza cites, there was probative evidence from which the jury could infer that, on at least one occasion, Garza told C. D. to accompany him to the motel and then molested her. That subsequent act of molestation is evidence that Garza intended to molest C. D. when he told her to go to the motel with him. See Moore v. State , 291 Ga. App. 270, 272, 661 S.E.2d 868 (2008).

(b) Conviction for child molestation.

Garza challenges the sufficiency of the evidence establishing venue as to one of his convictions for child molestation, which was based on his act of touching C. D.’s anus with his penis and finger. We assess this challenge under the same standard by which we assess the sufficiency of the evidence establishing guilt, "view[ing] the evidence [as to venue] in the light most favorable to the verdict and inquir[ing] whether the evidence would authorize a rational trier of fact to find beyond a reasonable doubt that venue was properly laid." Martin v. McLaughlin , 298 Ga. 44, 46 n. 3, 779 S.E.2d 294 (2015). "[W]hether the [s]tate met its burden [as to venue] is a matter resting soundly within the purview of the jury[,]" McMullen v. State , 300 Ga. 173, 175 (2), 794 S.E.2d 118 (2016) (citation omitted), and "ambiguities in the trial evidence must be resolved by the trial jury, not ... appellate courts." Martin , supra at 47, 779 S.E.2d 294 (citations omitted).

At trial, C. D. testified that one of the several ways Garza molested her was by touching her with his fingers and penis "in [her] butt." And in her recorded forensic interview, which was played for the jury, she mentioned Garza touching her "butt" in the course of describing the molestation that occurred at the motel. The state presented evidence that the motel was located in Ben Hill County, where this case was prosecuted. Even if, as Garza argues, it is not certain from this evidence that this act of molestation occurred at the motel, rather than at another place for which the state did not establish venue,

[t]he jury was entitled to decide for itself the most reasonable way in which to understand her [purportedly] ambiguous testimony about [the acts that occurred at the motel], and it would not have been unreasonable for the jury to decide that she meant that [the acts that occurred at the motel included Garza placing his fingers and penis on her anus]. Viewed in the light most favorable to the verdict, this evidence would have been sufficient to authorize a rational jury to find beyond a reasonable doubt that [Garza] committed [this particular act of child molestation] in [Ben Hill] County.

Martin , 298 Ga. at 48, 779 S.E.2d 294.

2. Ineffective assistance of trial counsel.

Garza argues that his trial counsel was ineffective in three respects: trial counsel did not challenge the admissibility of Garza’s statement to police; trial counsel did not object to the admission of the forensic interviewer’s report on hearsay grounds; and trial counsel did not seek to redact arguably objectionable material from C. D.’s recorded forensic interview. To prevail on his claim, Garza

must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington , 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyer was deficient, [Garza] must show that his lawyer performed [her] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A) . And to prove that he was prejudiced by the performance of his lawyer, [Garza] must show "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694 (III) (B) . This burden is a heavy one, and [Garza] has not met it.

Robinson v. State , 303 Ga. 321, 325 (3), 812 S.E.2d 232 (2018) (citation omitted).

(a) Failure to challenge admissibility of statement to police.

Garza argues that his trial counsel was deficient in failing to challenge the admissibility of the statement he made during a custodial interview with the police, which he argues was made in violation of his Sixth Amendment right to counsel. The Sixth Amendment guarantees a defendant the right to have counsel present at all "critical" stages of criminal proceedings, including interrogation...