Ramirez-Ortiz v. State

• Decision Date: 25 October 2021
• Docket Number: A21A0982
• Parties: RAMIREZ-ORTIZ v. The STATE.
• Court: Georgia Court of Appeals

361 Ga.App. 577

865 S.E.2d 206

RAMIREZ-ORTIZ

v.The STATE.

A21A0982

Court of Appeals of Georgia.

October 25, 2021

Frances C. Kuo, Lawrenceville, for Appellant.

Patsy A. Austin-Gatson, Nigel Robin Lush, Christopher Mark DeNeve, for Appellee.

Doyle, Presiding Judge.

Following his convictions for three counts of child molestation,¹ Daniel Ramirez-Ortiz appeals the denial of his motion for new trial. Ramirez-Ortiz argues that the trial court erred because (1) the evidence was insufficient to support the guilty verdict, (2) trial counsel was ineffective, (3) admission of his police interview and that of the victim constituted plain error, and (4) the trial court erroneously admitted other acts evidence under OCGA §§ 24-4-404 (b), 24-4-413, and 24-4-414. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict,² the evidence shows that Ramirez-Ortiz rented a room from Paz and Raul Ponce in Gwinnett County. Paz often cared for her five-year-old granddaughter, Y. P. ("the victim"), in the home. On June 30, 2017, the victim told I. G. – Paz's daughter-in-law – that Ramirez-Ortiz touched her, gesturing to "[h]er butt, her vagina, and her breasts." At I. G.’s urging, the victim told her mother, M. M., that Ramirez-Ortiz "touched" her, but she did not specify the location of the touching at that time. The victim later told M. M. that he had touched her "behind" and her breast area.

M. M. called the police the same day as the victim's outcry, and the victim was interviewed by police. Because the victim spoke both English and Spanish, a bilingual detective ("Detective F") assisted with the interview. According to a certified interpreter who reviewed the statement, the victim said that Ramirez-Ortiz touched her buttocks or "pompita" three times, her vagina once, and her chest once.

Approximately a year and a half after the molestation was reported to police, the victim's uncle – Anthony Ponce – asked the victim what had happened. While crying, she told him that Ramirez-Ortiz touched her butt, her vagina, and her breast area. Paz, who was present, yelled at the victim, called her a liar, kicked Anthony out of the house and "threatened [him]," telling him "Don't tell them anything." According to Anthony, his parents were "so supportive" of Ramirez-Ortiz. Anthony later testified at trial that he observed Ramirez-Ortiz "touching [the victim's] shoulders and grabbing her hair and saying really creepy things to her" and touching her low back "pretty close" to her buttocks. Anthony also heard Ramirez-Ortiz tell the victim, "[O]h, you're going to be a beautiful woman."

After observing behavior changes in the victim, including declining school performance, frequent crying, refusal to sleep alone, jumpiness around males, and clinginess, the victim's mother took her to see a therapist who specializes in traumafocused cognitive behavioral therapy

. The victim told the therapist that Ramirez-Ortiz "squeezed her bottom." According to the therapist, the victim said that when she told her grandmother, Paz responded, "He didn't do that. I didn't see it. He didn't do that." Paz also told the victim that Ramirez-Ortiz was in jail and that Paz wanted him to be released.

Ramirez-Ortiz was charged with three counts of child molestation. Prior to trial, the State moved to admit evidence of prior acts against other victims pursuant to OCGA §§ 24-4-404 (b), 24-4-413, and 24-4-414. Following a hearing, the trial court held that evidence of prior acts against three of the other victims was admissible, and it excluded evidence involving a fourth person.

At trial, the State introduced the victim's videotaped statement to police.³ The State also introduced an audio recording of Ramirez-Ortiz's interview with police, which was also interpreted by Detective F. The victim also testified, stating that Ramirez-Ortiz "touched [her] .. [o]n the front," indicating by pointing at her body.

The police investigator, the victim's therapist, Anthony Ponce, and other witnesses also testified, including three similar transaction witnesses. The first witness, B. M., testified that when she was approximately four years old, Ramirez-Ortiz sat her on his lap and "began to touch [her] inappropriately": he "put his hands on [her] vagina ... [and] was moving back and forth, like thrusting motions." B. M. could feel his penis on the outside of her clothing on the side of her bottom while he was thrusting.

I. G. testified that in November 2011, at a Thanksgiving gathering, Ramirez-Ortiz touched her inappropriately three times. The first time, I. G. felt him grab her butt, and she assumed it was an accident. Later that same day, he "let himself fall and grabbed [her] again." The third time, he came towards her "really fast" and touched her vagina as she bent down to retrieve a baby bag. M. M., the victim's mother, testified that in 2012, Ramirez-Ortiz slapped her buttocks with his hand.

At the conclusion of the trial, the jury found Ramirez-Ortiz guilty on all three counts of child molestation, and he was sentenced to ten years, to serve nine in confinement. Ramirez-Ortiz moved for a new trial, which motion was denied in a detailed order. This appeal followed.

1. Ramirez-Ortiz contends that the evidence was insufficient to sustain his convictions, specifically arguing that there was no evidence that he acted with criminal intent. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence.⁴ When determining the sufficiency of the evidence, "the relevant question is 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."⁵ The appellate court "does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence."⁶

Pursuant to OCGA § 16-6-4 (a) (1), "[a] person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." "[T]he evidence of the victim alone is sufficient to authorize the jury to find [a defendant] guilty of child molestation. No requirement exists that this testimony be corroborated."⁷

In this case, the victim testified that Ramirez-Ortiz touched her vagina, buttocks, and breasts. This testimony alone is sufficient to support his convictions for child molestation.⁸ With regard to intent, we note that "[t]he intent with which an act is done is peculiarly a question of fact for determination by the jury. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this."⁹

Here, the victim testified that Ramirez-Ortiz's touching made her feel "bad," and she cried months later when relaying the incident to her uncle. This authorized an inference that the touching was disturbing to her because it was sexual in nature and not merely incidental or accidental. Given the victim's testimony and outcry, it can be inferred that Ramirez-Ortiz acted with the intent to arouse or satisfy his sexual desires when he touched her breasts, vagina, and buttocks.¹⁰

2. Ramirez-Ortiz alleges that the trial court committed plain error by admitting the victim's police interview and his own police interview because his inability to cross-examine the bilingual police officer who assisted with interpretation during the interviews violated his Confrontation Clause rights. We find no basis for reversal.

Ramirez-Ortiz concedes that he did not object to the admission of his own police interview and the victim's police interview on Confrontation Clause grounds, so this enumeration must be reviewed for plain error.¹¹ Under this standard, Ramirez-Ortiz

must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity[,] or public reputation of judicial proceedings.¹²

As Ramirez-Ortiz points out, Corporal D. W., the lead investigator who conducted the victim's interview, testified that the bilingual detective – Detective F. – who assisted with translation during the interview was not a court-certified interpreter, and Detective F incorrectly translated some of the victim's statements. As a result, Corporal D. W. reviewed the victim's interview with a certified interpreter, and D. W. clarified the misinterpretations at trial. During the trial, defense counsel advised the trial court outside the presence of the jury that although the interpreter who reviewed the victim's statement and that of Ramirez-Ortiz found some inaccuracies and misinterpretations in the translation, "[t]here is nothing material of issue with [Detective F]. [The inaccuracies do] not materially change what [Detective F] states and what's in this detective's report."

Ramirez-Ortiz argues that admission of the victim's statement was plain error because his inability to cross-examine Detective F violated his Confrontation Clause rights. Pretermitting whether it was a violation of Ramirez-Ortiz's Sixth Amendment right to confrontation to admit the victim's statement through Corporal D. W.’s testimony regarding the interpretation by Detective F, Ramirez-Ortiz has failed to establish plain error,¹³ given that the victim testified at trial, Ramirez-Ortiz's counsel had the opportunity to cross-examine her, the jury was made aware of the inconsistencies in the interpretation, his trial counsel conceded that the inaccuracies in the translation were not "material," and, although a certified interpreter...