Palencia v. State

• Court: Georgia Court of Appeals
• Writing for the Court: Colvin, Judge.
• Citation: Palencia v. State, 855 S.E.2d 782, 359 Ga.App. 307 (Ga. App. 2021)
• Decision Date: 22 March 2021
• Docket Number: A21A0163
• Parties: PALENCIA v. The STATE.

359 Ga.App. 307

855 S.E.2d 782

PALENCIA

v.The STATE.

A21A0163

Court of Appeals of Georgia.

March 22, 2021

Reconsideration Denied April 8, 2021

David Edward Clark, for Appellant.

Patsy A. Austin-Gatson, Drew Unger, Daniel J. Porter, Lawrenceville, for Appellee.

Colvin, Judge.

On appeal from his conviction for crimes committed during a home invasion, including burglary, kidnapping with bodily injury, aggravated assault, rape, aggravated sodomy, and cruelty to children, Francisco Palencia argues that there was a fatal variance between the allegations and the proof and that the trial court erred in its admission of evidence subject to the rape shield law and in its charge to the jury. Palencia also asserts that trial counsel was ineffective. We find no reversible error and 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." (Citation omitted.) Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004). 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." (Emphasis omitted.) Jackson v. Virginia , 443 U. S. 307, 319, (III) (B) 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that in May 2017, Jose Carranza-Castro, who was serving time in federal prison, hired Palencia and Josue Ramirez-Aguilar to beat and disfigure Carranza-Castro's ex-girlfriend, with whom he had a child. On May 8, 2017, Palencia and Ramirez-Aguilar, accompanied by two women, knocked on the victim's door and, when she refused to admit them, broke one of her apartment windows. When the victim called police, the burglars fled. When the same group returned to the victim's apartment on May 12, 2017, they broke in and stole shoes, clothing, electronics, and the victim's puppy. After attempting to track the victim as she returned home from work, the men reentered the apartment to lie in wait for her while the women waited outside.

When the victim entered her apartment with her two children, Palencia and Ramirez-Aguilar threw her to the floor, beat her, tased her, and dragged her into the kitchen, where Ramirez-Aguilar threw boiling water on her in front of the two children present.

The hot water caused second-degree burns and blistering. When the victim retreated to her bedroom, Palencia followed her and demanded that she take off her dress and give him oral sex. After the victim complied, Palencia ordered her to lie down and then raped her. The men left soon afterward. Police responded to the victim's 911 call and took her to a hospital, where an exam did not produce DNA evidence of the rape.

Palencia was apprehended and charged with attempted first-degree burglary (Count 1), two counts of first-degree burglary (Counts 2 and 3), kidnapping (Count 4), aggravated battery (Count 5), aggravated assault (Count 6), aggravated sodomy (Count 7), rape (Count 8), and two counts of first-degree cruelty to children (Counts 9 and 10).¹ A jury found him guilty of all these with the exception of the second cruelty count, which it reduced to third-degree cruelty. Palencia was sentenced to 111 years plus life in prison. His motion for new trial was denied, and this appeal followed.

1. Palencia first argues that there were fatal variances between the allegations and proof of Counts 3 (first-degree burglary) and 6 (aggravated assault). We disagree.

Under Georgia law, the "true inquiry" concerning a variance "is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused." (Citation and punctuation omitted.) Wilhite v. State , 337 Ga. App. 324, 329 (3), 787 S.E.2d 293 (2016).

[T]he allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and ... the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance "fatal."

(Citation and punctuation omitted.) Id.

Here, Count 3 alleged that Palencia "remain[ed]" in the victim's "dwelling house ... unlawfully without authority and with the intent to commit" the felony of aggravated battery, while Count 6 alleged that he assaulted the victim by "brandishing" a taser at her. The evidence at trial was that Palencia entered and remained in the victim's house without authorization, and also that he actually tased the victim. As this Court has repeatedly held in such cases, the variances between the allegations and the proof were not fatal to Palencia's conviction because the indictments put him on sufficient notice of the charges against him. See Rubaldino v. State , 271 Ga. App. 726, 728 (1), 611 S.E.2d 68 (2005) (no fatal variance between allegation that defendant committed burglary when he entered the victim's house without permission and proof that he entered the house with permission but the victim's bedroom without permission); In the Interest of J. A. C. , 291 Ga. App. 728, 730 (2), 662 S.E.2d 811 (2008) (no fatal variance between allegation that defendant assaulted victim by hitting him with a baton and proof that he "merely advanced" on him); Quiroz v. State , 291 Ga. App. 423, 425 (1), 662 S.E.2d 235 (2008) (no fatal variance between indictment alleging that defendant held knife to victim's neck and proof that defendant only pointed it at him).

2. Palencia also argues that the trial court plainly erred when it authorized the admission of the State's evidence that the rape kit exam showed signs of male DNA, but not Palencia's, because she had voluntary intercourse the day before the attack with a different man. We agree that the trial court erred when it admitted the evidence, but we conclude that a new trial is not warranted.

In 2019, the Supreme Court of Georgia noted that unlike Federal Rule of Evidence 412, OCGA § 24-4-412 (a) does not exempt evidence offered by the State from its prohibition against the admission of "evidence relating to the past sexual behavior of the complaining witness[.]"

OCGA § 24-4-412 (a), cited in White v. State , 305 Ga. 111, 115-117 (1), 823 S.E.2d 794 (2019). Thus "a defendant is authorized to invoke Georgia's Rape Shield law in order to prohibit the admission of evidence of a witness's past sexual behavior offered by the State." (Emphasis supplied.) Id. at 118 (1), 823 S.E.2d 794. This trial court therefore erred when it admitted testimony concerning this victim's sexual behavior into evidence. See id. at 119 (3), 823 S.E.2d 794. But we must also consider whether this assumed error could amount to "plain error," as follows:

First, there must be an error or defect ... 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 substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted; emphasis supplied.) State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011). Although we cannot agree with the State that Palencia affirmatively waived his claim of error, Palencia cannot show that the trial court's error affected his substantial rights.

At the time of this trial, in October 2016, some Court of Appeals authority held that evidence of a complaining witness's past sexual behavior was admissible under a so-called "relevance" exception to the Rape Shield Statute. See, e.g., Bill v. State , 341 Ga. App. 340, 341-342 (1) (a), 799 S.E.2d 28 (2017) (overruled by White , supra ); Orengo v. State , 339 Ga. App. 117, 128 (10), 793 S.E.2d 466 (2016) (same); and other cases following Demetrios v. State , 246 Ga. App. 506, 514 (7) (c), 541 S.E.2d 83 (2000). As our Supreme Court pointed out in White , however, an older line of authority had "properly recognized that, by its terms, [the] Rape Shield Statute applied to exclude evidence offered by the State." (Emphasis supplied.) White , 305 Ga. at 120 (3), 823 S.E.2d 794, citing Johnson v. State , 146 Ga. App. 277, 280 (2), 246 S.E.2d 363 (1978) ("there is no method by which the [S]tate can properly introduce the proscribed evidence" under the Rape Shield Statute), and Herndon v. State , 232 Ga. App. 129, 132 (2), 499 S.E.2d 918 (1998) (trial court erred in allowing State to introduce evidence at trial that was inadmissible under the Rape Shield Statute). When this trial court followed the newer and incorrect line of cases in 2016, it committed "clear or obvious" error. White , 305 Ga. at 123 (3), 823 S.E.2d 794 (finding such error as to a 2014 trial).

We cannot conclude, however, that this error likely affected the outcome of this trial. Evidence that the victim had sex with another man shortly before the attack at issue could only benefit Palencia by undermining the victim's character. Further, Ramirez-Aguilar, who pled guilty to the rape, admitted to this jury that he was the person who threw water on the victim and that the two men acted in concert in assaulting the victim in front of her children.² Under these circumstances, the admission of evidence as to the victim's sexual encounter with another man on the day before the attack was not likely to affect the outcome of these proceedings or affect Palencia's substantial rights. Thus Palencia cannot show that ...