Fraga v. State

900 S.E.2d 737

FRAGA

v.The STATE.

A24A0548

Court of Appeals of Georgia.

April 17, 2024

David Edward Clark, for Appellant.

Susan Kreuzkamp Treadaway, Cliff Head, Damion Ryan Overstreet, for Appellee.

Brown, Judge.

Raphael Fraga appeals from his convictions of three counts of aggravated assault involving family violence, two counts of cruelty to children in the first degree,¹ harassing communications, criminal trespass, false imprisonment, battery involving family violence, and violating a family violence order.² He contends that insufficient evidence supports his convictions of one count of aggravated assault, both counts of cruelty to children, and violating a family violence order. He also asserts that the trial court failed to charge the jury on material elements of the crime of aggravated assault involving family violence. For the reasons explained below, we find that insufficient evidence supports Fraga’s conviction of cruelty to children in the third degree. We affirm the remaining convictions Fraga contests on appeal.³

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence." Ramirez-Ortiz v. State, 361 Ga. App. 677, 579 (1), 865 S.E.2d 206 (2021). So viewed, the evidence shows that in April 2020, Fraga met one of the victims ("the girlfriend") while he was working for her next-door neighbor. They started dating a short time later, and he moved in with her and her four children⁴ after a few weeks. From the first date, they began doing drugs together, and their relationship quickly became toxic and abusive. They argued loudly every day, and the girlfriend believed that the arguments were always her fault and began to feel powerless. His threats to murder her and kill himself frightened her. On one occasion a month after they began dating, Fraga choked the girlfriend after she accused him of sleeping with another person. She attributed the loss of her job and friends to her relationship with Fraga, which lasted a total of eight months.

The Notebook Incident

On December 18, 2020, Fraga and the girlfriend were fighting, and at some point while they wore in their upstairs bedroom, Fraga lit on fire a notebook containing song lyrics he had composed with the girlfriend and placed it on her right leg. The notebook caught the leggings the girlfriend was wearing on fire; she knocked it off "pretty quickly" and put the fire out by pouring a glass of bourbon and coke on it after it landed on the floor. While her leggings were damaged by the burning notebook, she was not injured. The incident did not scare the girlfriend because "she had become desensitized to things." She thought Fraga did it because he was trying to get her attention and "stop [her] from whatever [she] was doing."⁵

The girlfriend thought her oldest child, a daughter, was in the house at the time of this incident, but she testified that her daughter was not in the room at the time it occurred. The daughter testified that she heard her mother and Fraga arguing, went upstairs into their bedroom, which smelled liked burned carpet, and heard her mom "talking about the notebook on the floor" while Fraga stated that "he was going to burn down the house." The daughter left and took her younger siblings to a neighbor’s house. She testified at trial that she came in after the notebook had already been burned, but that the "arguing or yelling or screaming" increased in volume as she walked up the stairs. She did not testify about hearing any sounds or words related to the burning notebook as she walked up the stairs.

The Attempted Suicide Incident

After the girlfriend put out the fire, Fraga left the room and went to the garage. A few minutes later, the girlfriend followed him there and asked if he would like to talk. When he declined, she returned to the bedroom, where she saw a Xanax on her desk and placed it in her pocket. They began texting back and forth until she was startled to learn that he had returned to the room and was sitting behind her while they had been texting. Fraga then began yelling in her face about the location of the Xanax pill, and the girlfriend told him that she "had took it because [she] didn’t want him to have it." Fraga became very angry, went into the bedroom closet, and "tried to hang himself." The girlfriend was terrified when she heard him struggling to breathe, pushed the door open, pulled him off, and "started kicking him" because she was angry with him for doing that "with [her] kids there." He started yelling, "somebody threw a bottle of beer or glass or something," the girlfriend threw the Xanax pill at him, and he went back into the closet.

At some point, the daughter came upstairs asking her mother about a note Fraga wrote to her "saying that he’s sorry he failed for a stepdad … or something like that." At this point in time, Fraga, was in the closet and the girlfriend did not "have the strength to open [the closet door]." She instructed her daughter to call 911 and get help from a neighbor. According to the girlfriend, her daughter was distraught, crying, and shaking upon learning that Fraga was in the closet.

The daughter testified that she was "scared for [her] mother’s life through her relationship with [Fraga]" because Fraga had made previous threats to commit a murder-suicide in the daughter’s presence when things were not going his way in an argument with her mother. Whenever the daughter left the house, she was scared because she "would have that thought in [her] head," and worried that when she returned home "they were both going to be dead."

On the day of the notebook incident, the daughter returned to the bedroom after taking her younger siblings to a neighbor’s house and saw Fraga grab a tie and run into a closet to try to hang himself. She and her mother tried to open the door, which was difficult and "really scary, so [she] let [her] mom do it while [she] called the police." She was relieved when the police arrived because she knew Fraga was safe and could not hurt himself anymore. A police officer responding to the 911 call testified that when he arrived, Fraga was "emotionally distraught, hysterical," and being taken care of by paramedics because he had tried to kill himself. After speaking with witnesses, his "investigation turned from a suicide attempt into a domestic violence situation" and he determined that Fraga was the primary aggressor. As a result of his investigation, he took out warrants, but not for the girlfriend.

The December 27, 2020 Incident

The girlfriend testified that after the notebook/attempted suicide incident, "a TPO [was] filed by DFCS"⁶ and Fraga "wasn’t allowed to return to the home." Nonetheless, the girlfriend allowed him to come back shortly before Christmas because only her oldest daughter was at home and Fraga "had no family here" or anywhere to stay. She reasoned that "[a]s long as nobody knows, it will be fine." On December 27, 2020, the girlfriend got into a verbal altercation with Fraga, and he took her phone and refused to return it to her. At another point during the argument when she was on the couch, Fraga put "his body weight forward so that [she] couldn’t get up or sit up" when she tried to leave, the couch. When her daughter and a friend could not reach the girlfriend on her phone, they called 911. The girlfriend testified that the police arrested Fraga, but she did not specify the charges for which he was arrested. Three days later, she found her phone in the refrigerator.

The Pocketknife Incident

On January 14, 2021, Fraga convinced the girlfriend that he was sorry and she picked him up from jail. She was drinking and doing drugs during this time, and at some point, became scared⁷ and placed a pocketknife in her "bosom area" to protect herself. As she and Fraga were having a verbal altercation, he forcefully advanced while she backed up against a wall. When the knife fell out, Fraga grabbed it and said something like "oh, you were going to kill me." The girlfriend "started shaking because [she] was scared that he found the knife." Fraga went into the bedroom with the knife and then came out with the blade open, yelling and "talking not nicely" to the girlfriend. He was standing be- tween the girlfriend and the stairs, which were the only way for her to go to the lower level of the home and escape. As Fraga pointed the knife at her, the girlfriend was afraid that he was going to hurt her with it and did not know if he was going to kill her. She testified that she did not remember how she got into her daughter’s room but remembered calling 911 and hiding in a closet until the police arrived.

A patrol officer dispatched to the scene testified that Fraga "acknowledge[d] that he had special conditions of bond, commonly known as the Temporary Family Violence Order" requiring him to stay away from the girlfriend and her residence and that he was not supposed to be there. The officer confirmed that bond conditions were in place through a Georgia Crime Information Center ("GCIC") return. The State also introduced a copy of a document titled "Special Conditions of Bond" signed by a magistrate judge on December 30, 2020, that required Fraga to stay away from the girlfriend and her residence. The top of the document is captioned "State of Georgia v. Raphael P Fraga" and lists a warrant number, but it cannot be determined from the face of the document itself the nature of the crime for which the bond was issued.

[1] 1. Fraga argues that insufficient evidence supports his conviction of committing an aggravated assault of the girlfriend in connection with the notebook incident (Count 1) because the girlfriend was not scared or physically injured as a result of the incident and he only intended to commit property damage. We disagree. "A person commits the offense of aggravated assault when he or she assaults … [w]ith … any object, device, or instrument which, when...