Vazquez v. State
| Decision Date | 01 February 2021 |
| Docket Number | A20A2009 |
| Citation | 855 S.E.2d 15,358 Ga.App. 261 |
| Parties | VAZQUEZ v. The STATE. |
| Court | Georgia Court of Appeals |
David Joseph Walker, Jonesboro, for Appellant.
Stephen Andrew Bradley, Milledgeville, Tuttle W. Barksdale III, Faith Donnell Worley, for Appellee.
Following a jury trial, the Superior Court of Jones County entered a judgment of conviction against Antonio Vazquez, Jr. on two counts of aggravated sodomy ( OCGA § 16-6-2 (a) (2) ), three counts of aggravated child molestation ( OCGA § 16-6-4 (c) ) (2008), two counts of child molestation ( OCGA § 16-6-4 (a) ) (2008), and two counts of enticing a child for indecent purposes ( OCGA § 16-6-5 (a) ). Vazquez appeals from the denial of his motion for new trial, arguing that the trial court erred in: (1) improperly referencing Vazquez's appellate rights; and (2) denying Vazquez's motion for a mistrial after an expert witness testified to the ultimate issue in the case and invaded the province of the jury. Finding no error, we affirm.
Viewed in a light most favorable to the verdict,1 the evidence revealed that the victim lived in a duplex in Gray, Jones County, with her mother, younger sister, younger brother, and Vazquez. When she was six years old, Vazquez took the victim into his bedroom and forced her to perform oral sex on him until he ejaculated in her mouth. On another occasion, Vazquez went into the victim's bedroom after she went to bed, where she again performed oral sex on him. Then, during the same incident, Vazquez anally sodomized the victim and, despite the victim's pleas for him to stop because "that hurts,"2 continued until he ejaculated.3 The victim also recounted an event in Vazquez's bathroom during which she leaned over Vazquez's sink while he anally sodomized her. When the victim resisted, Vazquez would strike her on her hip. The victim stated that such abuse occurred "a lot," but that it only occurred when Vazquez had been drinking.
The victim also described occasions on which Vazquez showed her pornographic movies depicting a nude boy and girl engaged in the same "[b]ad things" Vazquez "did to [her]." As the videos played, Vazquez abused the victim in the same manner as "they were doing on TV[,]" which included anal and oral sodomy.
The victim did not initially disclose Vazquez's abuse because Vazquez threatened to hurt her mother, and the victim believed him. Ultimately, however, while attending a summer camp in Macon, the victim disclosed Vazquez's abuse to other campers because she "just needed somebody to talk to"; the campers then reported the abuse to camp counselors, who alerted Jones County law enforcement.4
A Jones County grand jury indicted Vazquez for two counts of aggravated sodomy, three counts of aggravated child molestation, two counts of child molestation, and two counts of enticing a child for indecent purposes. At trial, Vazquez denied touching the victim and testified that the allegations were part of the victim's mother's scheme to have him arrested and jailed following a fight between the two. To that end, Vazquez's mother testified that his arrest occurred one week after she reported the victim's mother to the Department of Family and Children Services for suspected physical abuse of the victim's younger sister. Nevertheless, the jury returned guilty verdicts against Vazquez on each count of the indictment, and the trial court denied Vazquez's motion for new trial.5 This appeal followed.
1. In his first enumeration of error, Vazquez contends that the trial court made an improper reference to his appellate rights during its introductory statements to the jury venire. See OCGA § 17-8-57 (a). We find no plain error.
(Emphasis supplied.) Vazquez did not object to the trial court's statement.
The "failure to make a timely objection to an alleged violation of [ OCGA § 17-8-57 (a) (1) ] shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties."6 OCGA § 17-8-57 (b).
To establish plain error, [Vazquez] must point to a legal error that was not affirmatively waived, was clear and obvious beyond reasonable dispute, affected his substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
(Citation omitted.) Bamberg v. State , 308 Ga. 340, 352 (5), 839 S.E.2d 640 (2020) ; see generally State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011) () (citation and punctuation omitted). To succeed on a claim of plain error, a party must satisfy each of the four prongs of the standard. See Kelly , 290 Ga. at 33 (2) (a), 718 S.E.2d 232.
Here, we find no plain error because Vazquez has not demonstrated an error or defect by the trial court that is "clear and obvious beyond reasonable dispute[.]" Bamberg , 308 Ga. at 352 (5), 839 S.E.2d 640. As a general matter, "[i]t is error for a trial judge in any criminal case to express or intimate an opinion as to the guilt of the accused." DeLoach v. State , 308 Ga. 283, 290 (2) (b), 840 S.E.2d 396 (2020) ; see also OCGA § 17-8-57 (a) (1). Indeed, "[a] trial judge's comment concerning the process or availability of appellate review in the case may run afoul of this rule if the jury may infer from the comment that the judge holds an opinion about the defendant's guilt." DeLoach , 308 Ga. at 290 (2) (b), 840 S.E.2d 396. "However, it is not error when the trial court references the appellate courts in a context that does not intimate that the judge holds an opinion on the defendant's guilt or lessen the jury's responsibility in making its decision." (Emphasis supplied.) Id. at 290-291 (2) (b), 840 S.E.2d 396 ; see also Mitchell v. State , 293 Ga. 1, 3 (3), 742 S.E.2d 454 (2013) () (citation and punctuation omitted).
In this case, "the trial court's statements ... were in the context of juror orientation at the start of the trial when no evidence had been adduced and opening statement had not yet been held." State v. Clements , 289 Ga. 640, 648-649 (4), 715 S.E.2d 59 (2011). None of the trial court's statements even remotely referenced Vazquez generally or specifically and included no reference to any evidence that may be introduced against Vazquez. As a result, "[w]here, as here, ... orientation occurred before any evidence was introduced, did not convey or intimate any opinion of the trial judge, nor lessen the sense of responsibility of the jurors," we conclude that the trial court's reference to appellate courts generally does not require reversal. (Citations and punctuation omitted.) Bearden v. State , 159 Ga. App. 892, 893 (3), 285 S.E.2d 606 (1981) ; see also Clements , 289 Ga. at 648-649 (4), 715 S.E.2d 59.
2. Next, Vazquez argues that the trial court erred in denying his motion for mistrial after an expert witness testified to the ultimate issue in the case and invaded the province of the jury. Vazquez waived appellate review of this issue.
During the State's direct examination of Dr. Debbie West, a pediatrician qualified as an expert witness in sexual abuse forensic examinations, the following exchange occurred:
Defense counsel asked to approach and, in the ensuing bench conference, moved for a mistrial. The State argued for a curative instruction instead, and the trial court recessed to allow counsel for both parties to research the issue. Following continued argument by counsel, the trial court ruled that "a curative instruction is far enough in this case because of the way it was done, and the fact it wasn't done with bad intent." The trial court then invited proposed curative instructions from both parties. Ultimately, Vazquez's counsel and the State agreed to a proposed curative instruction "with the understanding that it's not waiving the original motion for mistrial[:]"
Any reference in testimony by the doctor allegedly to other criminal cases, and especially alleged convictions, should not be considered by you or take part in your decision[-]making in reaching a verdict. Any testimony to that effect is stricken and...
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