Torres v. State
| Decision Date | 23 January 2020 |
| Docket Number | A19A1989 |
| Citation | 838 S.E.2d 137,353 Ga.App. 470 |
| Parties | TORRES v. The STATE. |
| Court | Georgia Court of Appeals |
Anthony Scott Carter, for Appellant.
Layla Hinton Zon, Jacqueline Payne Fletcher, for Appellee.
A Walton County jury found Andrew Blas Torres guilty of one count of forcible rape, four counts of incest, two counts of aggravated child molestation, and one count of aggravated sexual battery. Torres filed a motion for new trial, which the trial court denied. On appeal, Torres challenges the sufficiency of the evidence. Torres also contends that the trial court erred in failing to excuse a juror for cause, in excluding evidence of a prior sexual incident between the victim and her older brother, in allowing a police investigator to testify about Torres’s failure to meet with her for an interview, in failing to grant a mistrial after a witness referred to Torres’s pretrial incarceration on the current charges, and in failing to merge two counts of incest. For the reasons discussed more fully below, we reject Torres’s claims of error. However, because the trial court did not impose split sentences of incarceration and probation on the four counts of incest upon which Torres was convicted and separately sentenced, Torres’s sentences on those counts are void and must be corrected. Accordingly, we vacate Torres’s sentences imposed on the four incest counts and remand for resentencing.
"After a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer presumed innocent." Carcamo v. State , 348 Ga. App. 383, 383, 823 S.E.2d 68 (2019). So viewed, the evidence showed that Torres and his wife had three children, including a daughter born in August 1998. The daughter, who was eighteen years old at the time of trial, testified that Torres sexually abused her from when she was eight years old until she was sixteen years old. She discussed the following incidents of sexual abuse during the course of her testimony.
Throughout her childhood, the victim lived in several different states because of her parents’ work situations. When the victim was eight years old and in the third grade, the family lived in Colorado, and the victim testified that the sexual abuse began there. The victim remembered being naked on the couch with Torres when he told her they were going to play a game. Torres then began playing "patty cake" with the victim while she straddled him on the couch with his genitals touching her genitals. The victim recalled subsequent incidents of sexual abuse in Colorado in which Torres performed oral sodomy on her, touched her genitals, and penetrated her vagina with his fingers.
The family moved to Nevada when the victim was nine years old and in the fourth grade. The victim did not recall any physical contact with Torres in Nevada but did remember them being naked together on the couch.
The family then moved from Nevada to Georgia. The trip to Georgia took three days by car, and the family stayed in hotels along the way. One night, while the rest of the family was asleep, Torres awakened the victim and took her to the bathroom in their hotel room. Once in the bathroom, Torres undressed the victim and took off his own clothes, kissed her, touched her chest and genital areas, inserted his fingers into her vagina, and attempted to have sexual intercourse with her but stopped when she told him it hurt.
After arriving in Georgia, the family initially lived in a trailer home but then moved to a residence in Walton County in 2008, when the victim was ten years old and beginning fifth grade.1 At the residence, Torres would sexually abuse the victim in a room that served as his home office. The victim recalled that Torres would invite her into his office and would shut and lock the door. Torres then would show the victim pornographic video games on his computer while she sat on his lap, and he would touch the victim’s genitals, sometimes reaching under her clothes and sometimes undressing her. There also were occasions in the office where Torres would insert his fingers into the victim’s vagina, would perform oral sodomy on her, and would have her perform oral sodomy on him. These incidents of sexual abuse occurred once or twice every week in Torres’s office in 2008 and 2009 when the victim was in the fifth and sixth grades and thus was ten and eleven years old.
In 2010, Torres moved to Texas, and the victim and her sister lived with him there while the other family members lived in Georgia. The victim was twelve years old and in seventh grade. Torres continued to sexually abuse the victim while they lived in Texas, including kissing her, penetrating her with his fingers, requiring her to perform oral sodomy on him, and placing her hand on his penis. Torres also had sexual intercourse with her.
In February 2011, while the twelve-year-old victim was still in the seventh grade, Torres moved with his daughters back to the Walton County residence where the other family members lived. After they returned to Georgia, Torres sexually abused the victim during the remainder of her seventh grade school year and throughout her eight grade school year. The sexual abuse occurred in Torres’s home office and included acts of oral sodomy and sexual intercourse.
The victim was home schooled for her ninth and tenth grade school years, and the sexual abuse continued during that time period, which lasted from the summer of 2012 until the summer of 2014. The victim would play video games in Torres’s office, and Torres would require her to perform oral sodomy on him and have sexual intercourse. In one such incident, Torres grabbed the victim’s arms, pushed her down, and pinned her arms above her head while having sexual intercourse with her.
As the victim got older, she began to resist Torres’s efforts to sexually abuse her, and the number of encounters decreased. The victim attended the local high school for her junior year, and the last incident of sexual contact occurred in November 2014 of that school year, when the victim was 16 years old. During that incident, Torres penetrated the victim with his fingers and performed oral sodomy on her. She told him to stop because it hurt, but he ignored her. The victim was able to get up and leave the office. After that November 2014 incident, Torres continued to attempt to have sexual contact with the victim, but from that point forward she ignored him or did not "give into it."
During the years of abuse, the victim became increasingly angry with Torres and experienced feelings of self-hatred, disgust, lethargy, anxiety, and depression. Her grades at school began to fall, and she "slept all day." She would not eat and began cutting lines and words into her arm with a razor.
Torres became more angry and controlling over the victim as she got older, and he would frequently place her on restriction. Torres would not allow the victim to date or spend time with friends outside of school, and he would take away her cell phone for long periods of time.
Around the same time as the last sexual incident in November 2014, the victim began secretly dating a classmate. The victim was unable to see her boyfriend outside of school because of the restrictions placed on her by Torres. In late March 2015, Torres learned that the victim had a boyfriend, forbade her from continuing the relationship, and told her that she would be home schooled again her senior year. Scared that she would never see her boyfriend again and that she would be unable to "make it through the summer emotionally or mentally," the victim described some of the sexual abuse in a journal that she gave to her boyfriend on the last school day of her junior year, May 15, 2015. After reading the journal, the victim’s boyfriend gave the journal to his mother to read, and early on the morning of May 16, 2015, the victim’s boyfriend and his mother picked up the victim from her home. Before leaving her home, the victim wrote notes to her family members disclosing the sexual abuse to them for the first time. After learning of the abuse from one of the notes, the victim’s mother told Torres to leave the residence, and Torres left that day and never returned.
The police were contacted about the abuse, and an investigator with the Walton County Sheriff’s Office arranged for a forensic interview to be conducted with the victim. During the recorded forensic interview that occurred on June 4, 2015, the victim was reticent but communicated that she had been sexually abused by Torres. That same day, the victim underwent a forensic medical examination, which revealed no evidence of sexual trauma. According to the nurse examiner, the absence of evidence of sexual trauma was not unusual in light of the amount of time that had passed since the last incident of reported abuse. The nurse examiner did observe that the victim had cut a curse word into her arm. Additionally, the victim began weekly sessions with a counselor, who diagnosed her with post-traumatic stress disorder
("PTSD") and treated her from June 2015 through December 2016.
Torres went to Texas the day that the victim disclosed the sexual abuse to her family members, and the police investigator thereafter attempted to set up a time to meet with Torres and discuss the allegations. During a recorded phone call in October 2015, the investigator told Torres that she would like to speak with him in person about the case, and Torres responded that he was eager to speak with her to clear things up but claimed to be busy working out of state. Torres said that he might have some days off around the upcoming Thanksgiving holiday and would be happy to meet with the investigator if he could get the time off of work. Torres told the investigator that he wanted to resolve the matter and provide a statement. The investigator gave Torres her phone number so that he could call her when he was available for an interview. When the investigator later...
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