Arroyo v. State

903 S.E.2d 712

ARROYO

v.The STATE.

A24A0483

Court of Appeals of Georgia.

June 21, 2024

Noah Howard Pines, Atlanta, for Appellant.

Shalena Cook Jones, Mitchell Calvin Mobley, for Appellee.

Land, Judge.

After a jury trial, Keiver Rivas Arroyo was found guilty of rape. His motion for new trial was denied, and he appeals, arguing that the trial court erred in instructing the jury, that the evidence against him was insufficient, and that trial counsel was ineffective. For the reasons that follow, we affirm.

[1] "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). 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that on May 18, 2019, the victim, a 19-year-old college student, joined her friends at a house party in Savannah. According to the victim, she drank between two to four cups of vodka while at the house party, and her last memory of the evening was sitting on her friend’s porch.

The victim and her friends left the house party and went to a club. While at the club, the victim approached Arroyo¹ and his friends and invited them to talk and dance. The victim and Arroyo danced and kissed, and then the two left the club. Arroyo drove the victim to a gas station, where they purchased water and condoms. Arroyo then drove to a hotel. While on the way to the hotel, Arroyo was stopped for speeding by Garden City police. The victim was asleep during the traffic stop.

Arroyo and the victim arrived at the hotel at approximately 3:00 a. m. Arroyo went inside by himself, paid for a hotel room with his credit card, and left his phone number with the hotel clerk. Arroyo then returned to his car and brought the victim inside the hotel. Surveillance footage from the hotel shows the victim walking unsteadily in the hotel parking lot, The hotel clerk testified that Arroyo reentered the hotel lobby while holding hands with the victim, who "looked like she was possibly drunk" because "she was not walking real straight."

Arroyo testified that, once inside the hotel room, the victim first wanted to "have relations, but, then, she wanted to sleep" and that he offered to leave but that the victim asked him to stay. While in bed, Arroyo took several "live" photos of himself with the victim partially undressed in the background. Her face is not visible in the photos, and she is lying on the bed. According to Arroyo, he asked the victim multiple times if she was "sure" she wanted to have sex. Arroyo testified that he then attempted to penetrate the victim twice but stopped when she said it hurt. Arroyo testified that there was blood and that he helped the victim into the bathroom to clean up and take a shower. The victim and Arroyo left the hotel at approximately 4:50 a. m. A still photo from the hotel’s surveillance footage shows the victim walking unassisted through the lobby.

The hotel clerk testified that although "it didn’t look like there was anything wrong," she also thought the couple’s brief stay was "strange." The hotel clerk went up to the hotel room to look for damage, where she found blood on the sheets and comforter and three "used condoms" on the floor. The hotel clerk took a video of the room, which was played for the jury.²

Arroyo testified that, after leaving the hotel, the victim fell asleep while he drove her back to her dorm. When Arroyo arrived at the victim’s dorm, he was greeted by a security guard. When the victim would not wake up, the security guard called EMS "for them to make a medical evaluation." Arroyo stayed with the victim until EMS arrived. The victim remained unconscious despite efforts from EMS, and she was transported to the hospital at approximately 5:25 a. m. on May 19 to be treated for acute alcohol intoxication. She was discharged from the hospital at 9:15 that same morning.

The victim testified that she has no memory of the evening between sitting on the porch at her friend’s house and waking up at the hospital. After noticing blood when urinating, the victim returned to the hospital’s emergency department at approximately 5:41 p. m. on the evening following the incident and requested pregnancy and STD testing. The victim declined a rape exam. She was diagnosed with a urinary tract infection and discharged from the hospital for the second time at approximately 8:20 p. m. on May 19.

Later that evening, the victim received a call from Arroyo. The victim did not want to talk with Arroyo on the phone, so the two exchanged text messages. Arroyo asked the victim how she was doing. The victim told Arroyo that she did not "remember anything" and asked him repeatedly whether they had sex. Arroyo told the victim that they "tried, but nothing happened" and that the victim had consented. The victim again asked whether they had sex, stating that she "need[ed] to know" because she was a virgin. The victim then told Arroyo that he raped her.

After exchanging text messages with Arroyo, the victim told a SCAD security guard that she had been "possibly[ ] raped" and called 911 at the security guard’s direction. A sexual assault nurse examiner ("SANE") was not available, so the next morning, the victim went to a different hospital for a rape examination. While waiting for the SANE, the victim met with a Savannah Police Department SVU detective. The victim told the detective that she did not remember anything that had happened between attending a party on the evening of May 18 and waking up at the hospital the next morning. The victim provided the detective with Arroyo’s name and contact information.

A SANE then interviewed the victim, who told her that she did not recall any part of the event. The SANE then took photos of the victim and examined her.³ The victim had a circular burn on her right palm and abrasions and bruising on her lower legs. An internal exam revealed that the victim had three "internal vaginal injuries," including an abrasion "very common … after intercourse or a sexual assault," and bruising and a blood clot on her hymen. The SANE was unable to fully examine the victim’s cervix, however, because the victim could not tolerate a speculum exam. As to the victim’s injuries, the SANE testified that although "[y]ou don’t always have to have injury for a sexual assault[,] [t]he latest literature tells you that two or more injuries is consistent with a sexual assault." When asked whether the victim’s injuries were consistent with sexual assault, the SANE stated that the injuries were "consistent with [the victim’s] story." On cross-examination, the SANE nurse admitted that she could not date the age of any bruises and that the victim’s bleeding could be caused by a UTI. The SANE also admitted that the victim’s internal abrasions could be the result of consensual intercourse and that she could not determine from her examination whether the sex between Arroyo and the victim was nonconsensual.

At the detective’s suggestion, the victim texted Arroyo again, asking to speak with him over the phone. The victim then conducted a recorded call with Arroyo in the detective’s presence. Both the victim and Arroyo spoke in Spanish during the call, which was later orally translated by another detective.⁴

The victim testified that, during the call, Arroyo told her that she was "acting really sleepy," that he took her to a hotel, and that she asked him to have sex with her. Arroyo told the victim that when they tried to have sex, "he stopped because he saw the blood" and because the victim was making "weird movements … somewhat like seizures." Arroyo told the victim that he helped her "clean up" before taking her back to her dorm.

On June 18, 2019, a detective with the Pooler police department interviewed Arroyo with the assistance of an interpreter. Arroyo was provided with Miranda⁵ warnings prior to the interview and signed a Miranda waiver.⁶ A video recording of Arroyo’s interview was played for the jury. During the interview, Arroyo told the detective that he met the victim at a club and that the victim was "participating" while they had sex. At the end of the interview, Arroyo was arrested and charged with rape.

A jury found Arroyo guilty of rape, and he was sentenced to life with 25 years to serve in prison. Arroyo filed a motion for new trial, and after a hearing, the trial court denied the motion as amended. This appeal followed.

1. Arroyo argues that it was plain error for the trial court to instruct the jury that they could find force and lack of consent if the victim was intoxicated. Arroyo argues that this jury instruction was erroneous because the State was required to prove that the sexual intercourse between Arroyo and the victim was done both "forcibly" and "against her will" in order to convict him of rape. For the reasons discussed below, we find no plain error.

[2] As Arroyo concedes, he did not object to the charge at trial and we therefore review this claim only for plain error. See White v. State, 291 Ga. 7, 8 (2), 727 S.E.2d 109 (2012). Under plain error review,

[r]eversal is authorized if all four prongs of the standard adopted in [State v. Kelly, 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011),] are met: the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Id. "An appellant must establish all four elements of the test in order to demonstrate plain error, so satisfying this test is difficult, as it...