Solis-Macias v. State

356 Ga.App. 561

848 S.E.2d 180

SOLIS-MACIAS

v.The STATE.

A20A1502

Court of Appeals of Georgia.

September 4, 2020

Kelly Virginia Wegel, for Appellant.

Kenneth W. Mauldin, Malachi Reid Peacock, for Appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted Rosalino Solis-Macias on one count of sexual battery and five counts of child molestation. On appeal, Solis-Macias contends that the trial court erred in admitting video from a law-enforcement officer's body-camera, denying his motion to suppress his custodial statement, and refusing to give a jury instruction on sexual battery as a lesser-included offense of child molestation. For the reasons set forth infra , we affirm Solis-Macias's convictions.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that in 2018, Solis-Macias was married to Ingrid Solis, and the two of them lived in a duplex with their five-year-old son, as well as Ingrid's two other children from a previous marriage—thirteen-year-old son, D. B., and eight-year-old daughter, Y. B. On May 10, 2018, Ingrid disciplined Y. B. for using a cell phone when she was not allowed to do so. This decision upset Y. B., and she complained to her mother that she wanted to go live with her biological father. And when pressed by her mother as to why she was so upset, Y. B. disclosed that Solis-Macias inappropriately kissed her and made her touch his penis. Solis-Macias initially denied acting inappropriately, but the next morning, after he went to work, Ingrid sent him a text message, again asking if Y. B.’s disclosure was true. This time, he admitted that Y. B. was telling the truth and apologized for his actions.

Immediately thereafter, Ingrid called the police, and Athens-Clarke County police officer Robert Britt arrived at their apartment a short time later. Officer Britt—who was wearing a body-camera—began questioning Solis-Macias, and although English was seemingly not Solis-Macias's native language, he understood the officer's questions and admitted that he touched Y. B.’s privates on several occasions. Officer Britt then transported Solis-Macias to the police station, at which point Officer Laila Schuler conducted a custodial interview. At the start of the interview, Officer Schuler—who was born in Mexico and is fluent in Spanish—read Solis-Macias his Miranda rights² in English from a card and then summarized those rights in Spanish. Solis-Macias indicated that he understood those rights and agreed to speak with Officer Schuler without an attorney present. And during the course of this interview, Solis-Macias admitted that he touched Y. B.’s vagina on four separate occasions and made her touch his penis on one occasion. In addition, Solis-Macias informed Officer Schuler that he told Y. B. not to tell her mother about his actions.

That same day, May 11, 2018, a forensic interviewer with a local child advocacy center met with Y. B. And during the interview, which was recorded, Y. B. was initially reluctant to disclose what Solis-Macias had done to her. But she eventually explained—via a written note—that at some point after she turned seven years-old, Solis-Macias began sexually abusing her. Specifically, Solis-Macias told Y. B. that he wanted to be her boyfriend and would stick his tongue in her mouth and touch her privates. Additionally, on the same day as the interview, a sexual-assault nurse examiner performed a physical examination on Y. B., during which Y. B. again disclosed the details of Solis-Macias's actions.

Thereafter, the State charged Solis-Macias, via indictment, with one count of aggravated sexual battery and five counts of child molestation. The case then proceeded to trial, during which the State presented the foregoing evidence. In addition, Y. B. testified, and the State played the video from Officer Britt's body-camera, as well as the video of Y. B.’s forensic interview. Then, at the conclusion of the trial, the jury found Solis-Macias guilty of sexual battery as a lesser-included offense of the aggravated sexual battery charge in Count 1 and guilty of the separate child-molestation charges in Counts 2 through 6. Subsequently, Solis-Macias filed a motion for new trial, which the trial court denied. This appeal follows.

1. Solis-Macias first contends that the trial court erred in admitting the video from Officer Britt's body-camera into evidence, arguing that doing so violated the prohibition against recording a person without their consent as provided for in OCGA § 16-11-62 (2).³ We disagree.

As a general rule, admission of evidence is "a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse."⁴ We find no abuse of that discretion here.

Turning to the specific claim at issue, when he arrived at the family's apartment to investigate Y. B.’s disclosure, Officer Britt was wearing a body-camera, which recorded his encounter with Solis-Macias and his wife. And when asked if he sought Solis-Macias or his wife's consent to record this interaction, Officer Britt responded that he did not. Solis-Macias then objected to the recording's admission, but the trial court overruled his objection, and the State then played the recording for the jury.

On appeal, Solis-Macias argues that Officer Britt's body-camera recording of his investigation and the admission of that recording into evidence was prohibited by OCGA § 16-11-62 (2), which provides that "[i]t shall be unlawful for ... [a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view ...." But subsection (D) of this same statute provides "that it shall not be unlawful ... [f]or a law enforcement officer or his or her agent to use a device in the lawful performance of his or her official duties to observe, photograph, videotape, or record the activities of persons that occur in the presence of such officer or his or her agent ...."⁵ And with specific regard to subsection (D), the Supreme Court of Georgia has noted that

to the extent that OCGA § 16-11-62 (2) could have been construed to apply to the actions of police officers making video recordings of others without their consent after being invited into someone's home, the legislature made clear through a 2015 amendment to OCGA § 16-11-62 (2) that police do not have to obtain the consent of all parties being video recorded in a private place and outside of the public view when they record such persons in connection with their duties as police officers.⁶

And in this case, given that it is undisputed Officer Britt was recording his interaction with Solis-Macias and his wife as part of his official duties, the recording was not prohibited by OCGA § 16-11-62 (2).⁷ Accordingly, the trial court did not abuse its discretion in admitting the recording into evidence.

2. Solis-Macias also maintains that the trial court erred in denying his motion to suppress his custodial statement. Again, we disagree.

When a trial court rules upon the admissibility of a custodial statement following a Jackson-Denno⁸ hearing, it must determine whether, "based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily."⁹ And when the facts material to a motion to suppress are disputed, it "generally is for the trial judge to resolve those disputes and determine the material facts."¹⁰ In fact, our Supreme Court has identified three corollaries of this principle, which "limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts."¹¹ First, appellate courts generally must "accept those findings unless they are clearly erroneous."¹² Second, we must construe the evidentiary record "in the light most favorable to the factual findings and judgment of the trial court."¹³ And third, we generally must limit our consideration of the disputed facts to "those expressly found by the trial court."¹⁴

In this matter, just prior to Officer Schuler's testimony, the trial court conducted a Jackson-Denno hearing. And during that hearing, Officer Schuler—who was born in Mexico and considers Spanish her native language—testified that she first read Solis-Macias his Miranda rights in English, verbatim, from a card and then summarized those rights for him in Spanish. Officer Schuler also explained that, as part of that summary, she explained to Solis-Macias that he did not have to speak with her and he could have a lawyer if he wanted one. She further testified that she believed Solis-Macias completely understood her, she made no promises to him, and he agreed to speak to her without an attorney. Thereafter, Solis-Macias testified and claimed that he was too overwhelmed with emotion at the time to understand Officer Schuler and did not recall being informed that he could have an attorney present. But he did admit to telling Officer Schuler that he would speak with her. At the conclusion of the hearing, the trial court denied Solis-Macias's motion to suppress his statement, finding that he knowingly and intelligently waived his Miranda rights, and that his statement was freely and voluntarily given, with no hope of benefit or fear of injury.

Solis-Macias now contends that because his native language is Spanish, Officer Schuler did not properly advise him of his Miranda rights when she merely summarized those rights in Spanish rather than reading them verbatim as she did in English. This argument is a nonstarter. Indeed, even if there were some inconsistency in the exact form of the various warnings summarized by Officer Schuler, this fact "does not establish that the statement was involuntary."¹⁵ And considering the totality of the circumstances, including the rather important fact that the...