Solis v. State

899 S.E.2d 819

SOLIS

v.The STATE.

A23A1752

Court of Appeals of Georgia.

March 18, 2024

Madison Michelle Sisco, for Appellant.

Jeffrey Michael Perry, James Bradley Smith, Jefferson, for Appellee.

Pipkin, Judge.

Appellant Hector Rene Solis was convicted of six counts of sexual battery, see OCGA § 16-6-22.1 (b), and one count of Cruelty to Children in the First Degree, see OCGA § 16-5-70 (b). On appeal, Solis contends that his trial was infected with structural error, that trial counsel was ineffective, and that he is entitled to a new trial as a result of juror misconduct. While we agree that Solis is entitled to a new trial on the charge of Cruelty to Children in the First Degree as a consequence of juror misconduct, we affirm in all other respects. Accordingly, we affirm in part and reverse in part.

1. When viewed in a light most favorable to the verdicts, see Jackson v. Virginia, 443 U.S. 307, 319 (III) 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence adduced at trial established as follows. The victim, D. S., was born in July 2004, and Solis is her father. D. S., who was 17 years old at the time of trial, testified that she had a good relationship with her father "until he would drink or take his medicine or forget to take his medicine." D. S. testified that Solis began sexually abusing her around the time she was four-years old. The victim explained that, in her younger years, she and Solis bathed together; when they did, Solis made her touch his genitals. D. S. also described incidents in which Solis rubbed his penis "back and forth on [her] butt."

Later, when she was "going through puberty," Solis would "pull" her pubic hair. D. S. recounted that, around the time she was 13-years old, Solis forcefully shaved her pubic area and then put his mouth on her genitalia. Around the time she turned the age of 15, D. S. started showering alone, but this did not deter Solis; according to D. S., he would come into the shower and "touch [her] everywhere," including her "private parts" and breasts.¹ D. S. testified that, around this same time, Solis forced her to touch his genitals after he had showered because, he had said, "he had something on it, like a bump, and [he] wanted [her] to feel it." D. S. lacked any nearby relatives and had few friends, so it was not until late 2020 that D. S. disclosed the abuse, first to her boyfriend and then to her step-mother. When asked how the incidents made her feel, D. S. testified that she "didn’t like it because [she] knew it wasn't right[.]"

In addition to the allegations made by D. S., the jury also heard from K. R., who, as a child, lived in close proximity to the Solis residence. K. R. testified that, in the summer of 2010 -- when she was nine-years old -- she regularly visited the Solis household to spend time with D. S. K. R. recounted that, on what would be her final visit to the house, Solis offered to wash her swim suit and instructed her to get into a bath with D. S. According to K. R., Solis came into the bathroom with a camera, started taking pictures, and then put his hands "in her private zone," touching the top of her vagina. K. R. told the jury that she grabbed a towel and tried to escape from the house but that Solis blocked her path; D. S. came downstairs and helped K. R. leave the house.

Solis testified in his own defense; he denied the allegations and testified that, at the time of D. S.’s outcry, she was unhappy because Solis had "put some restrictions on [her]" as a result of her poor grades. Following a four-day trial, the jury returned guilty verdicts on the charges of sexual battery and cruelty to children. Following the verdict, the jury was dismissed; however, the trial court recalled the jury after discovering an error on the verdict form and instructed the jury to re-deliberate on the charge of Cruelty to Children in the First Degree. The jury affirmed its verdict, and Solis was sentenced. Solis timely filed a motion for new trial; after being appointed new counsel, he amended that motion. Following a hearing, the trial court denied the motion for new trial as amended, Solis now appeals, raising a number of enumerations. We address them in turn.

2. Solis’s first two enumerations concern the availability of hearing aids during trial.

In a pre-trial motion styled "Motion to Obtain Devices to Aid in Hearing," defense counsel asserted that Solis "does not hear well" and that, in order for the defendant "to have meaningful conversations" with counsel, he was "in need of a hearing aid." A subsequent pre-trial hearing reflects that, approximately a month before trial,² the State pro- vided defense counsel with a set of hearing aids for Solis. On the first day of trial, however, Solis was wearing only one of the hearing aids. As to this issue, the transcript reveals the following exchange in open court in the presence of trial counsel:

The Court: All right. Senor Solis, you’re not wearing your hearing aids.

The Defendant: I can hear what they say.

The Court: Okay.

….

The Court.: You have one?

The Defendant: I can hear -- I have one.

Yes, sir.

[Spanish-language] Interpreter: -- he has his right hearing aid on.

The Court: Okay. Are you satisfied with that?

The Defendant: Yeah, it’ll be okay.

The Court: It’ll be okay?

The Defendant: Yes. Yes.

The Court. All right. Thank you.

The trial commenced shortly thereafter.

[1] (a) On appeal, Solis asserts that he "is hearing impaired and requires hearing aids" but that "[h]e was denied access to two working hearing aids during his trial." According to Solis, this amounts to a "structural error." This argument is waived.

[2, 3] As we have explained, a structural error "is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Citation and punctuation omitted.) Hunt v. State, 268 Ga. App. 568, 570–71 (1), 602 S.E.2d 312 (2004). While claims of structural error are not subject to harmless-error analysis, see id., such claims are nevertheless still "capable of forfeiture." (Citation and punctuation omitted.) Pyatt v. State, 298 Ga. 742, 750 (5), 784 S.E.2d 759 (2016). Here, as he acknowledges on appeal, Solis did not object to being tried with only one hearing aid, and, thus, he failed to preserve this enumeration for our review. See, e.g., Payne v. State, 314 Ga. 322, 328 (2), 877 S.E.2d 202 (2022); Pyatt, 298 Ga. at 750, 784 S.E.2d 759. Instead, we consider this claim through the lens of Solis’s ineffective assistance of counsel claim. See Alexander v. State, 313 Ga. 521, 521, 870 S.E.2d 729 (2022).

[4–8] (b) Solis contends on appeal, as he did below that "[t]rial counsel acted ineffectively when he failed to ensure that [Solis] was able to effectively communicate and participate in the proceedings." To succeed on his claim, Solis must demonstrate both that his trial counsel’s performance was deficient and that he suffered prejudice as a result of counsel’s deficient performance. See Strickland v. Washington, 466 U. S. 668, 687 (III) 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To prove deficient performance, [Solis] must show that his lawyer performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Romer v. State, 293 Ga. 339, 344 (3), 745 S.E.2d 637 (2013). As to prejudice, Solis must establish that "the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious that they likely affected the outcome of the trial." Jones v. State, 305 Ga. 750, 755 (4), 827 S.E.2d 879 (2019). "[Satisfaction of this test is a difficult endeavor. Simply because a defendant has shown that his trial counsel performed deficiently does not lead to an automatic conclusion that he was prejudiced by counsel’s deficient performance." Davis v. State, 306 Ga. 140, 144 (3), 829 S.E.2d 321 (2019). And "[i]f an appellant is unable to satisfy one prong of the Strickland test, it is not incumbent upon [the reviewing court] to examine the other prong." (Citation and punctuation omitted.) Id. at 143 (3), 829 S.E.2d 321.

As an initial matter, Solis has failed to articulate the exact manner in which trial counsel performed deficiently. In his amended motion for new trial and accompanying brief, Solis asserted that trial counsel "failed to proride [Solis] with properly charged hearing aids during the course of trial" but then, at the subsequent hearing, argued that trial counsel "should have advocated" for Solis and "should’ve made sure that [Solis] had both of [the hearing aids] working." On appeal, Solis argues that "trial counsel deprived Appellant of his hearing aids" and that trial counsel only supplied one "properly charged" hearing aid. The record, however, does not support any of these contentions.

[9] There is no merit to the claim that trial counsel was ineffective for failing to advocate for Solis to have a second hearing aid at trial. While it is true that trial counsel filed a motion to secure hearing aids for his client, trial counsel also testified at the hearing on the motion for new trial that Solis did not have the benefit of hearing aids while he was awaiting trial and that Solis was still able to understand and communicate during this time. Further, it is undisputed that Solis was wearing one of those hearing aids at the start of the trial and, importantly, that Solis twice told the trial court "I can hear" at the start of trial. In light of these circumstances, we cannot say that trial counsel’s apparent decision to allow his client to proceed to trial while wearing only one hearing aid was so patently unreasonable that no reasonable attorney would have made a similar decision. See Middlebrooks v. State, 310 Ga. 748, 752 (3), 854 S.E.2d 503 (2021) (recognizing that "to establish that trial counsel was deficient, the appellant has to show that ‘no reasonable attorney’ would have taken the same course of action as trial counsel" (citation and...