Orengo v. State
| Decision Date | 27 October 2016 |
| Docket Number | A16A1171 |
| Parties | ORENGO v. The STATE. |
| Court | Georgia Court of Appeals |
James Stephen Lewis, Savannah, for Appellant.
Paul L. Howard Jr., Atlanta, Marc A. Mallon, for Appellee.
Following a 2009 jury trial, Michael Orengo was convicted of rape,1 false imprisonment,2 sexual battery,3 and battery4 ; he was acquitted of aggravated sodomy. The trial court granted his subsequent motion for new trial solely as to the rape conviction, and in 2012, he was retried for rape and convicted. Orengo appeals the denial of his motions for new trial as to all four charges.5 With regard to the 2009 trial, Orengo argues that the trial court erred by failing to sua sponte charge the jury on consent and by admitting testimony from a particular State witness not disclosed during discovery. He also alleges that trial counsel was ineffective by failing to: request a jury charge on consent; request a continuance or to cross-examine a particular State witness; or object to testimony regarding the victim's sexual orientation and activity, which testimony violated Georgia's Rape Shield Law. With regard to his rape conviction resulting from the 2012 trial, Orengo argues that the trial court erred by permitting the State to shift the burden of proof by arguing during closing statements; admitting the testimony of a particular State witness; failing to direct a verdict of acquittal because the State failed to prove venue; trying him for rape in violation of his double jeopardy rights; and admitting testimony regarding the victim's sexual orientation and activity in violation of Georgia's Rape Shield Statute. He also argues that trial counsel was ineffective by failing to move for a directed verdict of acquittal based on the State's failure to prove venue or to file a double jeopardy plea in bar. For the reasons that follow, we affirm.
"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."6 "We do not weigh the evidence or judge the credibility of witnesses, but determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."7
So viewed, the evidence introduced during the 2009 trial shows that Orengo, a mortgage broker, assisted D.H. in the sale of her Henry County home. Because D.H. was deaf, she and Orengo effectively communicated by passing written notes or by relay text messaging. After meeting several times to discuss the sale of her home, D.H. went to Orengo's office for a meeting on Saturday, February 16, 2008. Orengo asked D.H. to wear a dress to the meeting, but she declined.
Orengo met D.H. in the parking lot, and led her to his office where they met for approximately 20 minutes. Orengo then gave D.H. a note that she did not understand, and she walked over to him for clarification. According to D.H., Orengo then began touching her shoulder, "rub[bing]" and "groping" her, and she "pulled his arm off of [her]." Orengo then began "fondling" her, and she told him she "didn't want that," told him to "get off of [her]," and "pushed him away, but he continued." Orengo then forced her down from behind, groping her breasts and pulling her down from the neck. While twisting D.H.'s hand behind her back, Orengo then pulled down her pants and inserted his penis into her rectum. After showing her that the door to his office was locked, Orengo then pushed D.H. to the floor, forcibly penetrated her vaginally with his penis, and then ejaculated on her stomach. Afterwards, D.H. was very upset, and Orengo said, "I don't want to hurt you." D.H. cleaned herself up in the restroom, pushed Orengo away when he continued to rub her shoulder as she gathered her paperwork, and left the office.
D.H., who later described herself as "in such, such shock" and unable to "think straight," then went to the office of Kim Bashir, her real estate agent. D.H. and Bashir met for approximately four hours, and then D.H. went home. D.H. testified that she did not tell Bashir what Orengo had done because she believed that Bashir and Orengo were good friends. After crying all night, D.H. disclosed the assault to a friend the following morning, and he encouraged her to tell the police. D.H. went to church and disclosed the assault to church officials, who called the police and instructed her to go to the hospital. Medical personnel conducted a rape examination, and D.H. was interviewed by police and gave them the clothing she was wearing during her encounter with Orengo the preceding day.
At the April 2009 trial, the State introduced photographs depicting bruises on D.H.'s arms. A State crime lab employee testified that serology testing on vaginal/cervical smears taken from D.H. during her rape examination at the hospital revealed the presence of spermatozoa, but they were unable to identify a DNA profile other than that of D.H. The employee also testified that although it had a sample of Orengo's DNA, the lab was not asked to analyze D.H.'s clothing for the presence of Orengo's DNA. The State also played for the jury Orengo's videotaped statement; Orengo admitted during cross-examination that in the videotape he repeatedly denied physical contact with D.H.8 Orengo testified in his own defense, explaining that during one of their meetings, he gave D.H. a note asking her if she "had ever done it with a Puerto Rican," and she smiled in response. Orengo believed that D.H. "knew [he] was flirting" and "was receptive." According to Orengo, during the February 16, 2008 meeting, he Orengo denied that D.H. communicated to him in any way that she did not want to engage in sexual relations with him. He denied anally penetrating, striking, hitting, or choking D.H. during the encounter, but testified that they "were grabbing each other." Orengo conceded that he lied to police regarding whether he had sexual intercourse with D.H., but testified he did so because he did not want his wife or children to find out that he had engaged in extramarital relations.
The jury found Orengo not guilty of aggravated sodomy and guilty of rape, false imprisonment, sexual battery, and battery. Orengo moved for a new trial, and on February 8, 2012, the trial court granted a new trial as to the rape charge, but denied the motion as to false imprisonment, sexual battery, and battery.9
On October 9, 2012, the new trial as to the rape charge began. The State's evidence was similar to that introduced at the original trial.10 Orengo, however, did not testify at the second trial. At the conclusion of the evidence, the jury found Orengo guilty of rape.
Orengo filed a motion for new trial as to his rape conviction, and the trial court denied the motion. On May 18, 2015, the trial court entered a consent order permitting Orengo to file an out-of-time appeal of his conviction for false imprisonment, sexual battery, and battery resulting from the initial trial. This appeal of the convictions from both trials followed.
1. As an initial matter, we note that in his lengthy brief on appeal, Orengo, on more than one occasion, challenges errors and alleges instances of ineffective assistance of counsel in both the 2009 trial and the 2012 trial in the same enumeration of error. This practice violates our appellate rules11 and complicates our review. Nevertheless, as is our obligation, we will review those claims of error to the extent we can ascertain his arguments.12 2009 conviction for false imprisonment, sexual battery, and battery
Orengo asserts the following enumerations of error with regard to his first trial.
2. Orengo contends that the trial court erred when it failed to sua sponte charge the jury on consent, his sole defense at trial. We disagree.
Orengo did not request a jury instruction on consent.
If an affirmative defense is raised by the evidence, including the defendant's own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, need not be specifically charged if the case as a whole is presented to the jury. In a case involving charges of rape and aggravated sodomy, the effect of a consent defense is simply to traverse the [S]tate's proof. Thus, the failure to specifically charge on consent as a sole defense to an extrinsic offense, absent a request for such charge, was not reversible error.13
3. Orengo asserts that the trial court erred by admitting the testimony of expert witness Anique Whitmore. We find no reversible error.
After the defense rested, the State called Whitmore as a rebuttal witness. Over Orengo's objection, the trial court qualified her as "an expert therapist trained in sexual victimization," and Whitmore testified regarding disclosure patterns by sexual assault victims, including reasons for disclosure delay, particularly where the victim is familiar with the assailant or has "special needs," including hearing impairment.
Orengo argues that the trial court erred by admitting Whitmore's testimony. First, Orengo contends that the State failed to identify her as a witness during discovery, and instead, improperly admitted her testimony as rebuttal evidence. According to Orengo, the State clearly anticipated the need for her testimony, given D.H.'s delay in reporting the assault, and elected to present it as rebuttal evidence to ambush the defense. But although Orengo objected to the admission of Whitmore's testimony, he never asserted this particular basis—that it was not in fact rebuttal evidence—for his objection.14
It is the rule in Georgia that objections should be made with sufficient specificity for the trial court to identify the precise basis. It is not important in what format the allegation is cast so long as it is clear to the court...
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