Rendon-Villasana v. State

360 Ga.App. 769

861 S.E.2d 462

RENDON-VILLASANA

v.The STATE.

A21A1068

Court of Appeals of Georgia.

July 19, 2021

Erica Cori Matos, Atlanta, for Appellant.

Fani T. Willis, District Attorney, Lyndsey H. Rudder, Juliana Y. Sleeper, Richard B. Caplan, Assistant District Attorneys, for Appellee.

Mercier, Judge.

A jury found Gabriel Rendon-Villasana guilty of the kidnapping, rape, and sexual battery of one victim,¹ and the kidnapping and aggravated assault with intent to rape a second victim. Following the denial of his motion for new trial, Rendon-Villasana appeals, challenging the denial of his motion for directed verdict and asserting that his trial counsel was ineffective for failing to request funds for an expert witness. We affirm.

Viewing the evidence, as we must, in the light most favorable to the jury verdicts, Wilcox v. State , 310 Ga. 428, 431 (1), 851 S.E.2d 587 (2020), the evidence showed the following. On June 20, 2015, the first victim, M. G., and several of her friends were out celebrating a birthday and planned to stay overnight at a hotel. They visited different bars in the Buckhead area of Atlanta and had several alcoholic shots and drinks. M. G. became "very intoxicated." As the bars started to close for the night, the group began "ordering Ubers to take [them] back to the hotel." When they "saw what [they] thought were all of the Ubers parked in a line right next to the road," they "all piled into ... the cars." M. G., and one of her male friends, E. N., who was also "very intoxicated," got into the second vehicle, a gray or silver SUV, because the first vehicle was full. Before getting in the vehicle, E. N. asked the man driving if he "was [their] Uber driver," to which the man replied, "Yes."

Although E. N. gave the driver the address of the hotel where they were staying, the driver stopped "a block or two" from the hotel. When E. N. stepped out of the vehicle, the driver sped off with the door still open and M. G. still inside. E. N. chased the vehicle but there was no way "[he] could catch it." E. N. called police, some friends, and M. G.’s parents. He also called M. G. to tell her to get out of the vehicle, but she did not answer. E. N. recalled that M. G. was asleep when he stepped out of the vehicle.

M. G. did not remember getting into the vehicle and could not identify the driver of the vehicle. The next thing she remembered after drinking in the bar with E. N. was "being woken up" on an apartment complex sidewalk by a woman who gave her a glass of water. Disoriented and confused, M. G. called a friend who picked her up and took her to the hotel where she spoke with investigators. M. G. realized that the tampon she had in place the night before was missing. Her parents arrived and took her to the hospital where she was examined for sexual assault. M. G.’s vaginal/cervical swab revealed the presence of male DNA, which a forensic expert concluded came from semen, and blood was found in the "vaginal vault," which a nurse testified could be a sign of trauma.

On October 3, 2015, the second victim, K. H., met with some friends from college for drinks in the Buckhead area of Atlanta. At some point during the night, K. H. became intoxicated. Around 2:00 a.m., K. H. and her male friend, M. C., who was also "very drunk," decided to leave together, and M. C. called an Uber to take them to his home. M. C. recalled that when a vehicle arrived, he asked the driver if he was there to pick them up and gave the driver his address. K. H. and M. C. then got into the back of the vehicle. At some point during the ride, K. H. "passed out." The driver stopped across the street from M. C.’s house, and when M. C. stepped out of the vehicle to "help [K. H.] out the other side," the driver "took off" with K. H. M. C.’s cell phone was in the vehicle and he had no other phones in his home, so he "went in and went to sleep" because what had just happened "didn't fully register," and he "figured [the driver] didn't trust leaving a passed-out girl with a drunk man." M. C. stated that he "didn't think there was anything [he] could do, and [he] didn't really understand the gravity of the situation."

A couple of hours later, around 4:00 a.m., a police officer observed an SUV traveling without headlights. The officer activated his blue lights to conduct a traffic stop. K. H. remembered waking up in the back of a vehicle "and there was flashing lights behind us and [the driver] wasn't pulling over." She yelled at the driver to pull over. The driver did not stop immediately, but eventually pulled into an apartment complex parking lot, "got out of the car and ran." When officers realized K. H. was in the back of the vehicle, they asked her who she was and "who [the driver] was and why he was running." K. H. responded that she thought she was in an Uber. The last thing she remembered before waking up in the back of the vehicle was being at the bar with M. C.

K. H.’s mother arrived to take her home, but when K. H. realized that her pants were unbuttoned and her underwear was "down in her pants," she told her mother that she needed to go to the hospital. Hospital personnel performed a sexual assault examination of K. H., and male DNA was found on her rectal, vaginal, and cervical swabs. She had scratches and bruises on her thighs that she did not have before that night.

Officers were able to identify Rendon-Villasana as the driver who fled from the SUV from video of the traffic stop, information obtained from the registered owner of the vehicle, and items left in the vehicle. The owner of the SUV explained that she and Rendon-Villasana had a painting business together and that she allowed him to borrow her work vehicle the weekend of October 3, 2015. She explained further that sometime around 3:00 or 4:00 a.m. on October 4, Rendon-Villasana called her and asked her to report the vehicle as stolen.²

Detectives made contact with Rendon-Villasana, and a couple days later they obtained his buccal swab. Rendon-Villasana's DNA matched the DNA found in K. H.’s rectal swab and in M. G.’s vaginal/cervical swab.

Rendon-Villasana testified in his own defense that he did not commit the acts charged. But he admitted to being in the Buckhead area the night of both incidents. Rendon-Villasana initially testified that he never saw M. G., but then stated that he could not say that he never spoke to her or touched her because he "was drunk" and he "do[es] dance and talk to people." When asked, he stated he did not know how his DNA was found in M. G.’s vagina.

Rendon-Villasana explained that he met K. H.’s friend M. C. at a bar, and he asked M. C. if he needed a ride home. Rendon-Villasana admitted that K. H. and M. C. were in his vehicle and that he drove off when M. C. exited the vehicle. He claimed that he did so because when M. C. got ready to open K. H.’s door, K. H. said, "No, let's go ... I don't live here." Rendon-Villasana stated further that he was en route to take K. H. home when he was stopped by police, and that he fled because he was drunk and did not have a driver's license. When asked if he knew how his DNA was found in K. H.’s rectum, he stated that it was probably from physical contact in the bar. He testified that he danced with K. H. at a bar and that while they were dancing, he lowered the zipper of his pants and K. H. touched his penis. Rendon-Villasana explained further that when someone saw him, he put his penis back in his pants and placed his hands in the back of her pants.

Following the presentation of this evidence, the jury found Rendon-Villasana guilty of kidnapping both victims, the sexual battery and rape of M. G., and aggravated assault with intent to rape K. H. The trial court denied his motion for new trial, and this appeal followed.

1. Rendon-Villasana argues that the trial court erred in denying his motion for a directed verdict.

The test established in Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.E[d.]2d 560 (1979), is the proper test for us to use when a challenge to the sufficiency of the evidence arises from the denial of a motion for directed verdict. Under that test, we view all of the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.

Holmes v. State , 307 Ga. 441, 443 (1) (b), 836 S.E.2d 97 (2019) (citation omitted).

(a) Rendon-Villasana asserts that the evidence was insufficient to support the kidnapping of the victims, and he points to his testimony that he never had M. G. in his vehicle and did not drive himself on the evening of the alleged encounter with her. He argues further that neither victim testified that they felt they were unable to leave the vehicle freely.

OCGA § 16-5-40 (a) provides that "[a] person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will." With regard to K. H., evidence that Rendon-Villasana drove away before M. C. could help her out of the vehicle, that he fled when stopped by police, and that K. H. was "passed out," was sufficient evidence to establish that Rendon-Villasana kidnapped K. H. See, e.g., In re D. T. , 294 Ga. App. 486, 488 (1), 669 S.E.2d 471 (2008) (evidence sufficient to sustain kidnapping of unconscious victim); Johnson v. State , 351 Ga. App. 690, 694, 832 S.E.2d 676 (2019) (victim unable to consent where "will is temporarily lost" from intoxication or unconsciousness (punctuation omitted)).

Rendon-Villasana was never identified as the driver who sped away with a sleeping M. G. But the presence of his DNA in M. G.’s sexual assault kit places him at the scene, and K. H.’s kidnapping serves as evidence of his identification as it reveals a common scheme or modus operandi. See Edwards v. State , 224 Ga. App. 14, 16 (1) (b), 479 S.E.2d 754 (1996) (...