Lopez v. State

• Decision Date: 03 June 2020
• Docket Number: A20A0425
• Citation: 844 S.E.2d 195,355 Ga.App. 319
• Parties: LOPEZ v. The STATE.
• Court: Georgia Court of Appeals

355 Ga.App. 319

844 S.E.2d 195

LOPEZ

v.The STATE.

A20A0425

Court of Appeals of Georgia.

June 3, 2020

Brian Joseph Huffman Jr., for Appellant.

Meg E. Heap, District Attorney, Katie L. Fite-Magyar, Assistant District Attorney, for appellee.

Miller, Presiding Judge.

A Chatham County jury found Jason Andrew Lopez guilty of two counts of family violence battery and two counts of family violence simple battery, and the trial court sentenced him to forty-eight months in prison. Lopez appeals from the trial court's order denying his motion for new trial, arguing that (1) the trial court erred by admitting hearsay testimony at trial; (2) the trial court erred by admitting evidence of prior difficulties into evidence at trial; (3) the evidence was insufficient to sustain his convictions; and (4) the trial court erred by failing to merge his convictions. We conclude that the trial court did not err by admitting alleged hearsay evidence at trial, the trial court did not commit plain error by admitting evidence of prior difficulties, and that the evidence was sufficient to sustain Lopez's convictions. We conclude, however, that the trial court erred by failing to merge Lopez's convictions. We therefore affirm in part and vacate in part, and remand the case to the trial court for resentencing.

Viewed in the light most favorable to the verdicts,¹ on February 3, 2017, Patrick Wygal was at the courtyard of a hotel on an army base with two other individuals. According to Wygal, at around 4:00 a.m., Mallory, Lopez's wife, was being chased by a "big naked dude" later identified as Lopez. Mallory ran up to Wygal and told him that Lopez had hit her and that her tooth had chipped

. Wygal and another individual chased after Lopez, and he told them that he had gotten into a dispute with Mallory.

Mallory spoke with a police officer who responded to the hotel and told him that she and Lopez had been fighting. She said that during the fight Lopez hit her legs, grabbed her by the arms, and pushed her down onto the bed. She also said that Lopez "held her down by the top of her chest to her throat and then began to hit her in the face" until she "tasted blood." She said that Lopez then got off of her, at which time she ran to the hotel lobby area. Mallory did not testify at trial, but photographs of her injuries were entered into evidence at trial.

In a four-count accusation, Lopez was charged with two counts of family violence battery ( OCGA § 16-5-23.1 (f) ) and two counts of family violence simple battery ( OCGA § 16-5-23 (f) ). The jury found Lopez guilty of all counts, and the trial court sentenced Lopez to 48 months in prison. Lopez filed a motion for new trial, which the trial court denied. This appeal followed.

1. First, Lopez argues that the trial court erred by admitting into evidence statements made by Mallory under the forfeiture by wrongdoing exception to the hearsay rule. We conclude that the trial court properly admitted Mallory's statements into evidence.

"We review a trial court's ruling on an evidentiary question only for an abuse of discretion." Almeda v. State , 348 Ga. App. 576, 577 (1), 824 S.E.2d 72 (2019).

The Sixth Amendment to the United States Constitution provides

that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. This clause applies to witnesses against the accused—in other words, those who bear testimony and, consistent with the framers’ original understanding, testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

(Citations and punctuation omitted.) Brittain v. State , 329 Ga. App. 689, 693-694 (2), 766 S.E.2d 106 (2014). Nevertheless, "notwithstanding a criminal defendant's Sixth Amendment right to confront the witnesses against him, the common-law doctrine of forfeiture by wrongdoing permits the introduction of statements made by a witness who has been detained or kept away by the means or procurement of the defendant." (Citation and punctuation omitted.) Id. at 694 (2) (a), 766 S.E.2d 106. Rephrased, "[o]ne who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." (Citation and punctuation omitted.) Hendrix v. State , 303 Ga. 525, 528 (2), 813 S.E.2d 339 (2018). Hence, OCGA § 24-8-804 (b) (5) provides: "The following shall not be excluded by the hearsay rule if the declarant is unavailable as a witness: ... A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." "To admit a statement against a defendant under the rule of forfeiture-by-wrongdoing, the government must show (1) that the defendant engaged or acquiesced in wrongdoing, (2) that the wrongdoing was intended to procure the declarant's unavailability, and (3) that the wrongdoing did procure the unavailability." (Citation and punctuation omitted.) Hendrix , supra, 303 Ga. at 528 (2), 813 S.E.2d 339. "If, as supported by a preponderance of the evidence, a trial court finds that a party has acted with the purpose of making a witness unavailable to testify against him, a trial court does not abuse its discretion in allowing the unavailable witness's statements to be admissible at trial against the party who caused the witness's absence." Id.

Here, after Mallory failed to appear for trial, the State sought to admit into evidence several statements made by Mallory to police and other witnesses on the night of the incident, in addition to statements made by Mallory during jail calls with Lopez in which she recounted the details of the incident. In support of its motion, the State presented testimony from an investigator who testified that Mallory had been served with a subpoena to appear for trial. While serving Mallory with the subpoena, Mallory told the investigator that "her blood would be on her hands," that she would not attend the trial, and that she would rather be jailed. The State also entered into evidence recordings of jail calls between Mallory and Lopez which were made after his arrest. In one call, Lopez repeatedly told Mallory that the State would not be able to proceed against him if she did not cooperate with the prosecution. In that same call, Lopez told Mallory that "just because they subpoena you doesn't mean you have to show up," and that she would not be arrested if she did not appear and testify at trial. Lopez also told Mallory that he hoped she came to court so that he could spit in her face.

We conclude that all three factors were proven by a preponderance of the evidence to admit Mallory's statements into evidence under the forfeiture by wrongdoing rule. First, Lopez engaged in wrongdoing by pressuring Mallory with the notion that she did not have to comply with the subpoena to appear for trial and by repeatedly telling her that the State would not be able to proceed with the case without her. See Hendrix , supra, 303 Ga. at 529 (2), 813 S.E.2d 339 (holding that the defendant engaged in wrongdoing by instructing the victim not to cooperate with the State). Second, Lopez's wrongdoing was intended to procure Mallory's unavailability because he repeatedly told her that the State would not be able to proceed with the case against him if she did not cooperate. See id. (holding that the defendant intended to procure the witness's unavailability by commanding the witness not to cooperate with the State). Finally, Lopez's wrongdoing did procure Mallory's unavailability because, although under subpoena, Mallory did not appear for trial. See id. (holding that the defendant procured the witness's unavailability because the witness stopped cooperating with the State after being threatened by the defendant). Because a preponderance of the evidence showed that Lopez engaged in wrongdoing intended to procure Mallory's unavailability, and that wrongdoing did actually cause her unavailability, the trial court did not abuse its discretion by admitting Mallory's statements under the forfeiture by wrongdoing rule. See id. (holding that the trial court did not err by admitting the witness's statements under the forfeiture by wrongdoing rule where all three factors for admissibility were established by a preponderance of the evidence).

2. Second, Lopez argues that the trial court erred by admitting evidence of three prior difficulties involving Mallory into evidence at trial. We conclude that the evidence was properly admitted.

As a preliminary matter, this enumeration of error was not preserved for appellate review. Although Lopez argues that this claim was preserved by a "continuing objection" at trial and by the filing of a motion for new trial, Lopez's continuing objection was a hearsay objection made in reference to the trial court's forfeiture by wrongdoing ruling. Lopez, however, did not raise an objection to the admissibility of the prior difficulties evidence at trial, and raising this argument in the motion for new trial did not preserve it for appellate review. Anthony v. State , 302 Ga. 546, 549, 807 S.E.2d 891 (2017) ("In order to preserve an objection for appellate review, the specific ground of the objection must be made at the time the challenged evidence is offered."). Therefore, we review this enumeration for plain error only. See Perez v. State , 331 Ga. App. 164, 166-167 (1), 770 S.E.2d 260 (2015) (applying plain error review to the defendant's claim that the trial court erred by admitting prior bad acts into evidence at trial). To show plain error,

first, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's

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