Mora v. State
| Decision Date | 23 January 2009 |
| Docket Number | No. A08A1653.,A08A1653. |
| Parties | MORA v. The STATE. |
| Court | Georgia Court of Appeals |
Louis M. Turchiarelli, Marietta, for appellant.
Patrick H. Head, District Attorney, Maurice Brown, John R. Edwards, Assistant District Attorneys, for appellee.
A Cobb County jury found Cesar Mora guilty of rape, statutory rape, and two counts of child molestation for sexually abusing his wife's twelve-year-old sister, N.P. The trial court merged the statutory rape conviction into the rape conviction and sentenced Mora to life imprisonment. Concurrent with the life sentence, the court also imposed a 20-year sentence for the child molestation convictions. On appeal, Mora claims that the trial court erred (1) in denying his motion for a directed verdict, (2) in admitting his custodial statements, and (3) in denying his motion for new trial on grounds of ineffective assistance of trial counsel. For the reasons that follow, we disagree and affirm.
1. Mora argues that the trial court erred in denying his motion for a directed verdict of acquittal on the rape charge because there was no evidence of force as required by OCGA § 16-6-1. We disagree.
The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Conflicts in the testimony of the witnesses, including the [s]tate's witnesses, are a matter of credibility for the jury to resolve.1
So viewed, the evidence shows that in September 2003, N.P. and her mother moved into an apartment with Mora and his wife Jasmine, N.P.'s sister. According to N.P., Mora molested her several times in October 2003. During the first incident, Mora touched N.P.'s breasts, buttocks, and vagina. Approximately one week later, Mora approached N.P. while her mother and sister were at work and asked her to have sex with him. When N.P. refused, Mora offered to pay her. N.P. again refused and Mora grabbed her hands, threw her on the sofa, and kissed her. Mora then removed N.P.'s pants and had sex with her. N.P. testified that she was crying and telling Mora "no" and "to leave her in peace" and that Mora told her that if she told anybody they would get "run out of the apartment." N.P. testified that she was scared and that Mora had sex with her at least two more times that month. On another occasion, Mora came into his bedroom where N.P. and her two-year-old nephew were watching television and put in a pornographic movie. Mora then put on a condom and told N.P. to masturbate him. N.P. eventually told her mother and stepfather that Mora raped her, and they reported it to the police.
Detective Ralph Escamillo of the Cobb County Police Crimes Against Children Unit investigated the report made by N.P.'s mother and stepfather, and interviewed N.P. During the interview, N.P. told Escamillo that Mora raped her three times; that Mora forced N.P. to masturbate him; and that Mora gave N.P. $150. After interviewing N.P., Escamillo executed a search of Mora's apartment, where he recovered a pornographic videotape. Mora was arrested at the apartment and taken to the police station, where Escamillo read him his Miranda rights in Spanish and then conducted a taped interview. During the interview, Mora initially told Escamillo that N.P. was lying, but then changed his story and explained that N.P. masturbated him and that he had sex with her twice because she "came onto him." Mora also stated that he gave N.P. $50 the first time they had sex.
At trial, Mora acknowledged having sex with N.P. two times. He testified that she seduced him. He explained that he initially lied to Escamillo because he was afraid his wife would find out that he had been unfaithful to her.
Under OCGA § 16-6-1, "[a] person commits the offense of rape when he has carnal knowledge of ... [a] female forcibly and against her will; ... Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ." "The term `forcibly' means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation."2 Only minimal evidence of force is required in order to prove rape of a child.3 Moreover, "[l]ack of resistance, induced by fear, is force, and may be shown by the victim's state of mind from her prior experience with the defendant and subjective apprehension of danger from him."4 Mora contends that there was no evidence that he had sex with N.P. forcibly. He points out that N.P. did not tell anyone about the rape until several months later and the state presented no medical evidence of any force on her body. According to Mora, the evidence showed that N.P. "was paid for sexual favors."
N.P. testified that the first time she had intercourse with Mora he grabbed her hands and threw her on the couch; that she was scared and crying; and that he warned her that she would be run out of the apartment if she told her mother. This evidence was sufficient to prove the element of force necessary to support the rape conviction.5 The trial court did not err in denying the motion for a directed verdict of acquittal on the rape charge.
2. Mora contends that the trial court erred in admitting his statements to Escamillo because they were the result of coercion and were not freely and voluntarily made. Mora argues that Escamillo coerced him into speaking by promising not to tell his wife and by lying to him about having found his DNA on a tissue N.P. wiped herself with after the sexual act. He also alleges that Escamillo coerced him into confessing by telling him that the sexual acts were not serious because they were consensual.
The record reflects that the state sought a Jackson-Denno hearing "out of an abundance of caution" and that defense counsel agreed to proceed with the hearing.6 During the hearing, Escamillo testified that he interviewed Mora at the Cobb County Police Department; that Mora was in custody and was not free to leave; that he spoke with Mora primarily in Spanish; that he read Mora his Miranda rights in Spanish and gave Mora an opportunity to read the form himself; that Mora read through the form before he signed it; and that he did not threaten or coerce Mora and did not offer a hope of benefit to him. At one point during cross-examination, the state objected that defense counsel was going beyond the scope of whether Mora's statements were voluntary and whether he was given sufficient Miranda warnings. Defense counsel agreed that the purpose of the hearing was to determine whether the statements were voluntary. The trial court then invited defense counsel to point out any specific instances in the videotape of the interview where Escamillo may have threatened Mora.7 Defense counsel proceeded to question Escamillo about the search of Mora's home and his discussions with Mora's wife about Mora's whereabouts. The trial court ruled that Mora's statements were voluntary and admissible, but that defense counsel could object during the trial if the videotape reflected anything improper. During the trial, the videotape was played for the jury. On the videotape, Escamillo implores Mora to tell the truth and states, When Mora responds by explaining that he gave N.P. money to prevent her from being "ugly" to her mom and that N.P. masturbated him, Escamillo further states:
Cesar, I don't want you to make a lot of problems for yourself. I am trying to explain to you if we, the police department, charge you and you're doing these things to her against her will because she didn't give you permission and didn't want to, these are very strong charges. If these are charges that you just had sexual relations with her because she wanted to have relations with you because both of you wanted to, it's not as big.
Mora then tells Escamillo that N.P. came onto him and that they had sex two times. Counsel did not object to admission of the videotape or Mora's statements.
"In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground."8 In Williams,9 we recognized that
a defendant who objects to the admissibility of a custodial statement, but receives an unfavorable ruling at a Jackson-Denno hearing, need not renew the objection at trial to preserve it for appellate review. This is so because the trial court has been apprised of the possible error in admitting the evidence and has made its ruling. To fully inform the trial court and permit a ruling, however, the defendant must articulate the specific basis for objecting to the statement.10
In that case, we found that even though the defendant made an objection as to the voluntariness of his confession, he did not timely assert a Fourth Amendment objection to the admissibility of his custodial statements and, therefore, waived the argument on appeal.11 In this case, Mora acquiesced in the decision to hold a Jackson-Denno hearing and participated in the hearing; however, counsel never articulated a specific basis for objecting to the admission of Mora's statements to Escamillo, i.e., that police lied to him and/or coerced him into confessing. In fact, the record demonstrates the contrary. During the Jackson-Denno hearing, counsel acknowledged that Escamillo could mislead Mora about the amount of inculpatory evidence possessed by the police. ...
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