Rodriguez v. State

355 Ga.App. 122

843 S.E.2d 9

RODRIGUEZ

v.The STATE.

A20A0404

Court of Appeals of Georgia.

May 5, 2020

Zell & Zell, Rodney Samuel Zell, Atlanta, for Appellant.

Jacquelyn Lee Johnson, District Attorney, Thomas Edward Buscemi, Assistant District Attorney, for Appellee.

Mercier, Judge.

After a jury trial, Cesar Rodriguez was convicted of child molestation and incest for crimes he committed against his minor daughter. The trial court sentenced Rodriguez to 50 years on the incest count, with the first 49 years to be served in confinement.¹ He appeals his conviction, contending that the trial court erred in imposing an enhanced sentence on the incest count because the question of the victim's age (for the purposes of the incest count) was not submitted to the jury for determination. Finding no basis for reversal, we affirm.

OCGA § 16-6-22 (a) provides: "A person commits the offense of incest when such person engages in sexual intercourse or sodomy ... with a person whom he or she knows he or she is related to either by blood or by marriage as follows: (1) Father and child[.]" OCGA § 16-6-22 (b) provides in part:

A person convicted of the offense of incest shall be punished by imprisonment for not less than ten nor more than 30 years; provided, however, that any person convicted of the offense of incest under this subsection with a child under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than 50 years.

Viewed in the light most favorable to the verdict, the relevant evidence adduced at trial showed the following. Rodriguez's biological daughter, H. R., was born in December 2000. In July 2014, when H. R. was 13 years old, her mother noticed that H. R. was gaining weight and appeared to be having health problems. Rodriguez told the mother they should get H. R. a pregnancy test. On July 30, 2014, the mother asked H. R. if it was possible that she was pregnant and if anyone had ever "touched" her. H. R. replied that her father was the only person who had ever "touched" her, adding that Rodriguez had told her she could not be pregnant because he "didn't put it all the way in." The mother confronted Rodriguez, who said he was "really sorry." She told Rodriguez he was a "very sick man," to which he replied that he had "been sick" since he was a child.

H. R. told her mother that Rodriguez had been doing "sexual things" to her since she was six years old and having sex with her since 2011, when she was about ten years old, and that he last had sex with her one or two days after her brother's July 15, 2014 birthday. H. R. testified that Rodriguez had had sex with her "a lot" and that she was unsure of how many times it happened.

The mother took H. R. to the doctor, and it was confirmed that H. R. was pregnant. H. R. gave birth to a son in August 2014, when she was 13 years old. DNA testing revealed a 99.99% probability that Rodriguez was the father of H. R.’s baby.

At the close of evidence, the trial court instructed the jury on the offenses of child molestation (including that child molestation involves a victim under the age of 16 years)² and incest. The court did not instruct the jury to make a specific finding as to H. R.’s age in connection with the incest count. After the jury found Rodriguez guilty of both crimes, the court entered a judgment of conviction and sentenced Rodriguez to 50 years on the incest count pursuant to OCGA § 16-6-22 (b). Although the crime of incest does not include an age element, sentencing is enhanced where the victim of incest is under the age of 14 years. OCGA § 16-6-22.

Rodriguez asserts that any fact that increases a penalty beyond the statutory maximum must be determined by a jury, and that the trial court thus erred by failing to submit the issue of H. R.’s age to the jury. We review issues of law de novo. See generally Clark v. State , 328 Ga. App. 268 (1), n. 2, 761 S.E.2d 826 (2014).

Rodriguez is correct that such facts must be determined by a jury. Indeed,

unless a criminal defendant waives his right to a jury trial, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The dispositive question is one not of form, but of effect. If [the] State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.

Hernandez v. State , 300 Ga. App. 792, 794 (2), 686 S.E.2d 373 (2009) (citation and punctuation omitted) (quoting Apprendi v. New Jersey , 530 U. S. 466, 490 (IV), 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ); see Blakely v. Washington , 542 U. S. 296, 300-305 (I)-(II), 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (defendant who pled guilty to kidnaping was denied his right to trial by jury when the court made 32 findings of fact and imposed a sentence that exceeded the statutory maximum based on a judicial determination that the defendant had acted with "deliberate cruelty," a statutorily-enumerated ground for departing from the maximum sentence;...