Sivonda v. State, A19A1979

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Coomer, Judge.
• Citation: 353 Ga.App. 762,839 S.E.2d 251
• Parties: SIVONDA v. The STATE.
• Docket Number: A19A1979
• Decision Date: 20 February 2020

353 Ga.App. 762
839 S.E.2d 251

SIVONDA
v.
The STATE.

A19A1979

Court of Appeals of Georgia.

February 20, 2020

839 S.E.2d 252

Lynn M. Kleinrock, for Appellant.

Daniel J. Porter, Lawrenceville, Lee Franklin Tittsworth, Samuel Richard d'Entremont, for Appellee.

Coomer, Judge.

353 Ga.App. 762

A jury found Joseph Sivonda guilty of two counts of rape, three counts of armed robbery, and two counts of aggravated sodomy. On appeal, Sivonda contends that the trial court erred when it allowed exhibits that violated the continuing witness rule to go back with the jury during deliberations. For the reasons discussed below, 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." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004). So viewed, the evidence shows that one of the three victims, N. B., advertised her services on Backpage.com.¹ N. B. testified that men paid for her "time," but that she did have sex with men after they paid her. N. B. was contacted in response to her advertisement and asked to come to a house in Norcross. N. B. drove to the house and knocked on the door. A man answered the door and invited her in. As N. B. walked further into the house, she realized that it was abandoned. Then the man told her that because he did not have any money, he was going to rape her. He pulled out a knife and told N. B. to give him her jewelry,

839 S.E.2d 253

money, and cell phone. The man told N. B. to take off all of her clothes. He told her that if she screamed, he would kill her. He also told her that he had pepper spray that he would use on her. After N. B. took her clothes off, he took her to the bathroom and forced her to give him unprotected oral sex. He also had sexual intercourse with her, but used a condom after she begged him to do so. Afterward, he took N. B. back to the basement where her clothes were. The man allowed N. B. to leave the house, and she drove to a gas station. While she was at the gas station, a police officer approached her and asked if she was okay. She did not tell the police officer what had happened because of her involvement with Backpage.com.

Another victim, A. J., was a dancer at a strip club who also advertised her services on Backpage.com for "massages, private dances, and et cetera." A. J. testified that "et cetera" included sex if the person was willing to pay the price she quoted. On April 29, 2013, she received a text message in response to her advertisement on Backpage.com from someone who agreed to pay for a massage. The

353 Ga.App. 763

person who contacted her asked her to go to an apartment in Gwinnett. The apartment number was S-6.

When she arrived at the apartment, a man opened the door and invited her in. When A. J. stepped inside, she noticed that there was no furniture in the apartment, so she turned around to leave. By then, the man was standing behind her with a gun pressed against her back. The man told her to give him her phone and her purse. He told her that if she followed his instructions, she would make it out alive. A. J. testified that she feared for her life. The man made her strip naked while he held a black handgun. The man searched her, then told her to put her clothes back on. Then the man ordered her to perform oral sex on him. He held the gun by her head as she performed unprotected oral sex on him. A. J. noticed a tattoo or birthmark on his lower abdomen. Afterward, the man said that he was going to go out a back door, and that he wanted her to stand in the bathroom for five minutes. The man took $50 that she had in her bra. He also took her phone and identification.

A. J. did not call the police until the next day when she told her mother what had happened, and her mother made her call the police. A. J. told the police the address and apartment number where she had gone. She was also able to tell the police part of the phone number the man had used to contact her.

The third victim, S. F., worked as an escort in addition to working part-time as a home healthcare nursing assistant. She placed advertisements on Backpage.com. Her services could be for a dinner and movie date, but it was usually "intimate," meaning that she had sexual intercourse with people in exchange for money. On April 30, 2013, someone responded to one of S. F.’s advertisements. S. F. was instructed to go to an apartment in Gwinnett County. S. F. was first told to go to apartment S-7, but then the man who had contacted her called back and told her to go to apartment S-6. When she arrived at the apartment building around 4:00 a.m., a man was standing by a flight of stairs. S. F. and the man spoke and walked toward a flight of stairs, and then the man turned around and pulled a gun on her. He had one hand on her arm and, with the other hand, pointed the black handgun at her face. The man told S. F. to be quiet and do what he told her. He asked if she had money, and she said she did not. He made her give him her phone. The man then made her perform unprotected oral sex on him. He then got a condom out of his coat and had sexual intercourse with her. The man then made her perform unprotected oral sex on him again. She vomited on the grass. Some of the vomit got on her sweater, so the man took her sweater. S. F. convinced the man to give her phone back before he left. The man told her to wait on the

353 Ga.App. 764

steps for three minutes after he left, but she ran away as soon as he was out of sight.

S. F. ran back to her car and drove around looking for the man because she wanted to run him over with her car. She did not find the man, and she returned to the apartment complex parking lot, where she was able to flag down a police officer. S. F. told the police officer what happened. The police officer asked her if she was willing to undergo a

839 S.E.2d 254

sexual assault examination. She was willing, and drove herself to the sexual assault center. She gave a statement to a detective at the sexual assault center before the examination.

The police noticed that both A. J. and S. F. had reported that their assaults occurred at the same location, that both incidents were robberies with a sexual component, and that both women gave similar descriptions of the man who robbed them. In addition, the phone number used to contact A. J. and S. F. had the same first six digits, although the police did not know if the last four digits were the same because A. J.’s phone had been taken from her and she could not remember the last four digits. The police obtained phone records for the phone number used to contact S. F., and those phone records led them to believe that the Sivonda brothers, Joseph and Kevin, might be involved. Based on the description of the perpetrator, the detective believed it was more likely to be Joseph Sivonda. In the call records for the number used to contact S. F., the police noticed an often-repeated phone number that they identified as belonging to Sharon Sivonda, the mother of Joseph...