Chavez v. State

329 Ga.App. 207

764 S.E.2d 447

CHAVEZ

v.The STATE.

No. A14A0966.

Court of Appeals of Georgia.

Oct. 3, 2014.

Matthew David Crosby, for Appellant.

Nigel Robin Lush, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., for Appellee.

Opinion

ANDREWS, Presiding Judge.

A Gwinnett County jury found Antonio Cacique Chavez guilty of one count of rape (OCGA § 16–6–1 ), one count of aggravated sexual battery (OCGA § 16–6–22.2 ), two counts of aggravated child molestation (OCGA § 16–6–4(c) ), and one count of child molestation (OCGA § 16–6–4(a) ). The trial court denied Chavez's motion for new trial as amended and Chavez appeals, arguing that he received ineffective assistance of trial counsel due to a host of alleged errors. We affirm.

Viewed in a light most favorable to the jury's verdict, the evidence adduced at trial revealed that the victim lived with her mother, brothers, sister-in-law and nephew at a residence in Gwinnett County. The family moved to the house when the victim was approximately eight years old. At the same time, Chavez moved into the residence and subsequently began a sexual relationship with the victim's mother. Initially, the victim liked Chavez because he played games with her and helped take care of her when her mother worked a night-shift job. Her feelings for Chavez changed, however, when he did “bad stuff” to her.

The “bad stuff” began with Chavez asking the victim to play with him and then removing her pants and touching her “private part” over her underwear. The incident made the victim feel “scared,” but she did not tell anyone due to Chavez's threat that they would get in trouble. Some time thereafter, Chavez continued his abuse of the victim by putting his “private part on [the victim's] private part” under her clothes and inserting his penis inside her vagina. The victim also explicitly described Chavez's ejaculate, Chavez digitally penetrating her vagina and moving his fingers around, Chavez making the victim place her hands on his penis, and instances of oral intercourse in which Chavez placed the victim's mouth on his penis and inserted his tongue in the victim's vagina. Chavez also showed pornographic videos to the victim. These occasions made the victim feel “nasty” and made her want “to throw up.” The victim also witnessed acts of sexual intercourse between Chavez and her mother.

After several instances of abuse, the victim finally told her sister-in-law about Chavez's actions, after which she felt “happy” and “relieved.” The sister-in-law reported the abuse to the victim's mother, and the three of them proceeded to a local hospital where staff reported the incident to law enforcement.

At trial, the victim's second cousin testified as a similar transaction witness. Chavez lived with the cousin's family in Kansas and was evicted when his abuse of the cousin was discovered; Chavez then moved in with the victim and her family in Gwinnett County. The cousin described a similar initial affection for Chavez, followed by instances of sexual abuse culminating in her outcry to her brother and parents and resulting in Chavez's expulsion from their home.¹

In his sole enumeration of error, Chavez contends that he received ineffective assistance of trial counsel.

Under Georgia law,

[t]o obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel's performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. To establish deficient performance, a defendant must show that counsel's performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

(Citations and punctuation omitted.) Reyes v. State, 322 Ga.App. 496, 502(5), 745 S.E.2d 738 (2013). If an appellant fails to satisfy either prong of the test for ineffective assistance of counsel, it is not incumbent upon this Court to examine the other prong. See, e.g., Thomas v. State, 318 Ga.App. 849, 857(5), 734 S.E.2d 823 (2012).

1. Failure to Object to Testimony by Corporal Edwin J. Ritter.

First, Chavez argues that trial counsel was ineffective for failing to object to testimony by Gwinnett County Sheriff's Corporal Edwin J. Ritter that commented on the victim's credibility. Specifically, Chavez highlights the following testimony during Ritter's cross-examination:

Q. Some of the things that you mentioned specifically when you talked about the recording that you did here, there's always a concern about coaching, that the child has been coached. Was there anything in that interview that gave you the impression that that had happened, the mother's information perhaps?

A. I was a little concerned at first when I was establishing a rapport with [the victim] when she just came out and said that the defendant made her—or did these things to her.

Q. What about the language she used when she said he's the person I have a problem with?

A. Yeah. I questioned that in my mind. And then later on in the interview when she was able to give specific details that would be age inappropriate, I believed what was going on.

(Emphasis supplied). The question followed other questions from Chavez's counsel concerning Ritter's experience with victims “who made allegations that, in your opinion, were false” and Ritter's training related to questioning victims to limit influencing the victim's story. Trial counsel did not object to Ritter's statement that he “believed what was going on.”

It is true that “[t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court,” OCGA § 24–9–80 (2010), and that witnesses may not opine whether a party is telling the truth. See Shelton v. State, 251 Ga.App. 34, 38(3), 553 S.E.2d 358 (2001). The jury in this case was so charged. However, Ritter's testimony simply responded to Chavez's counsel's inquiries concerning Ritter's training and whether the victim may have been coached. Moreover, the victim testified and was subject to cross-examination, and the video recording of the victim's interview was presented to the jury, allowing it to independently evaluate her credibility.² Regardless of whether trial counsel should have objected to Ritter's testimony, in view of the overwhelming evidence of Chavez's guilt, we cannot say that Ritter's limited statement affected the outcome of the trial. See Jones v. State, 292 Ga. 593, 600(7)(d), 740 S.E.2d 147 (2013) ; Damerow v. State, 310 Ga.App. 530, 536 –537(4)(a)(i), 714 S.E.2d 82 (2011) ; Brock v. State, 183 Ga.App. 277, 279, 358 S.E.2d 613 (1987). Chavez has therefore failed to show a reasonable probability that he would not have been convicted but for the error, and, accordingly, ineffective assistance of trial counsel has not been shown on this basis.

2. Failure to Object to Burden Shifting in Prosecutor's Closing Argument.

Next, Chavez contends that he received ineffective assistance of trial counsel due to counsel's failure to object to comments by the prosecutor that allegedly shifted the burden of proof to the defense. He likewise complains that trial counsel rendered ineffective assistance by failing to preserve the issue for appeal following a subsequent objection. We are not persuaded.

During closing arguments, while referring to Chavez's testimony, the prosecuting attorney argued that, “[y]ou know, ladies and gentlemen, you've got to give me a reason. If you're going to find this man not guilty, you got to give me a reason why not one but two girls would make this up about him.” Trial counsel did not object to this statement. Later in the prosecutor's argument, he stated, “I mean, ladies and gentlemen, you have to give me a reason to acquit, but you can't. And you shouldn't be concerning yourselves with questions about why a child would lie.” Trial counsel objected and asked to approach the bench. The ensuing bench conference was not transcribed, and the record contains neither a ruling on trial counsel's objection nor a request for a curative instruction or any other remedial measure.

“[A] prosecutor is granted wide latitude in the conduct of closing argument, the bounds of which are in the trial court's discretion.” Matthews v. State, 294 Ga. 50, 53(3)(b), 751 S.E.2d 78 (2013). Here, the prosecutor's statement was merely an interpretation of the trial court's charge on the definition of reasonable doubt (“A reasonable doubt is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given.”).³ Irrespective of whether Chavez's trial counsel erred in not objecting to the argument or in failing to preserve alleged error for appeal, however, we find no prejudice. To the contrary, the record confirms that

the trial court fully and correctly instructed the jury on the burden of proof. Thus, even if defense counsel would have objected to the prosecutor's statements, the outcome of the trial would not have been different. Qualified jurors under oath are presumed to follow the instructions of the trial court.

(Citations and punctuation omitted). Davis v. State, 294 Ga. 486, 488(3)(b), 754 S.E.2d 67 (2014). See also Jeffers v. State, 290 Ga. 311, 312–313(3), 721 S.E.2d 86 (2012) ; Mikell v. State, 286 Ga. 722, 724(2)(a), 690 S.E.2d 858 (2010). Hunt v. State, cited by Chavez, does not compel a different result. 268 Ga.App. 568, 574(5), 602 S.E.2d 312 (2004) (prosecutor's closing argument, while improper, did not warrant reversal because error was harmless). Accordingly, Chavez's claim of ineffective assistance due to trial counsel's failure to object to the prosecutor's argument or to subsequently preserve the alleged error is without merit.

3. Failure to...