Torres-Garcia v. State

2021 Ark. App. 174

RAUL TORRES-GARCIA APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-414

ARKANSAS COURT OF APPEALS DIVISION I

April 21, 2021

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. 04CR-18-1585]

HONORABLE ROBIN F. GREEN, JUDGE

AFFIRMED; REMANDED TO CORRECT THE SENTENCING ORDER

RAYMOND R. ABRAMSON, Judge

Raul Torres-Garcia appeals his convictions of second-degree sexual assault and two counts of first-degree sexual assault. He was sentenced to an aggregate term of fifty years' imprisonment. On appeal, Torres-Garcia argues that the circuit court erred by (1) denying his directed-verdict motion, (2) allowing Mery Rivera's testimony, (3) reading an improper statement of the case to the jury, (4) excluding his wife's testimony, and (5) permitting Lieutenant Helmich's testimony. We affirm, but we must remand to the circuit court with instructions to correct a clerical error in the sentencing order.

On October 18, 2019, the State filed an amended criminal information charging Torres-Garcia with second-degree sexual assault pursuant to Arkansas Code Annotated section 5-14-125(a)(4)(A)(iv) (Repl. 2016) and two counts of first-degree sexual assault pursuant to Arkansas Code Annotated section 5-14-124(a)(1)(D) (Supp. 2019). The State alleged that Torres-Garcia had assaulted a minor, D.S.L., on or before July 2018 and that he was her temporary caretaker or in a position of trust or authority over her.

Prior to trial, Torres-Garcia moved to exclude the testimony of Mery Rivera. He explained that he had been charged with fourth-degree sexual assault of Rivera in 2006 but that the case ended in a mistrial when Rivera recanted on the stand. He noted that following the mistrial, the court granted his motion to dismiss the charges based on double jeopardy. He argued Rivera's testimony was inadmissible under Arkansas Rules of Evidence 404(b) and 403, was time barred, and violated his double-jeopardy rights.

The court held a hearing on the motion. At the hearing, Rivera testified that she first met Torres-Garcia on MySpace. She stated that their relationship developed and that they began meeting in person to have sex when she was fourteen years old. She testified that they had sex in his car and at a local hotel, and she noted that Torres-Garcia had picked her up at school. Rivera stated that Torres-Garcia ingratiated himself into her life—he befriended her family, joined their church, and attended her quinceañera. She further testified that he had his wife befriend her and had her arrange for Rivera to visit their home. She stated that when she visited his home, he separated her from his family and had sex with her.

Rivera further testified that she "ran away" with Torres-Garcia and left a farewell note for her parents. She stated that after a short period of time, Torres-Garcia advised her to return home. Rivera explained that she then made a statement to law enforcement and thatTorres-Garcia was arrested. She, however, continued to communicate with him through his wife and niece. Torres-Garcia told Rivera that if she testified in his favor, he would not go to jail and they could continue their relationship when she turned eighteen years old. She further testified that Torres-Garcia threatened to hurt her family if she testified against him. She admitted that at his trial for the 2006 assault charges, she had lied about their relationship. At the conclusion of the hearing, the court denied Torres-Garcia's motion and found that Rivera's testimony was admissible.

Torres-Garcia then moved to exclude certain portions of Rivera's testimony at trial. Specifically, he sought to exclude testimony that (1) he used social media to communicate with her, (2) he and Rivera ran away together, and (3) Rivera skipped school to have sex with him. He asserted that her testimony on these subjects was inadmissible under Arkansas Rules of Evidence 404(b) and 403. The court denied the motion.

The case proceeded to trial on October 22, 2019. During voir dire, Torres-Garcia objected to the court's reading of the following statement of the case to the jury:

The State alleges Raul Torres-Garcia was a temporary caretaker or in a position of trust or authority over [D.S.L.], a minor, who was his babysitter, and he engaged in sexual contact and sexual intercourse with her.

He cited Arkansas Code Annotated section 16-89-107 (Repl. 2005), argued that the jury should determine issues of fact, and asserted that the statement shifted the burden of proof. The court overruled the objection and explained that the statement was necessary to ensure that prospective jurors did not have prior knowledge of the case. The jury was thereafter impaneled, and the State presented its case.

Rivera testified consistently with her testimony from the pretrial hearing. During cross-examination, Torres-Garcia questioned Rivera whether she had any "proof" or any "independent verification" of her allegations against him. This line of questioning would come into play later in the trial.

D.S.L. was the next witness and testified that she started babysitting Torres-Garcia's children when she was about fourteen years old and continued until she turned sixteen. She stated that during her first babysitting job, Torres-Garcia stood so close to her that she could feel his penis on her lower back. She stated that on another occasion, he positioned his penis near her vagina and "dry hump[ed]" her when they were fully clothed. She further testified that when he transported her to and from his house, he had stroked her breast. She stated that on about five or six occasions, he stopped at a storage unit and had sex with her in the back of his car. She also testified that Torres-Garcia and his wife were friends with her parents and that they had celebrated holidays together.

D.S.L.'s mother and father, Brenda Lopez and Eduardo Sanchez, testified that Torres-Garcia was a family friend. They both stated that Torres-Garcia had frequently visited them at their party-supply store to socialize and that their families had spent holidays together. Sanchez further testified that he had asked Torres-Garcia to help D.S.L. obtain DACA (Deferred Action for Childhood Arrivals) status and that they had traveled to an immigration office together. He also stated that Torres-Garcia had approached him about D.S.L.'s babysitting his children and that he had encouraged D.S.L. to take the job. He testified thathe had trusted Torres-Garcia with his daughter. He noted that he did not have a driver's license and that Torres-Garcia had offered to teach D.S.L. how to drive.

At the close of the State's case, Torres-Garcia moved for a directed verdict on all three charges and argued that the State had failed to offer sufficient evidence that he was a temporary caretaker or in a position of trust or authority over D.S.L. at the time of the assaults. The court denied the motion. Torres-Garcia then presented his defense.

Torres-Garcia called his wife, Blanca Araujo, to testify on his behalf. The State objected to her testimony because she had not been included on Torres-Garcia's witness list for voir dire. Torres-Garcia conceded that Araujo's name had not been on that witness list but asserted that her name had appeared throughout the State's discovery file. He also pointed out that he had reserved the right to call all witnesses who appeared in the State's discovery file in his September 20, 2019 witness list. The court granted the State's request and excluded Araujo's testimony. The court explained that the requirement existed so that it could voir dire the jury on conflicts and that it had just enforced the rule against the State to Torres-Garcia's benefit.¹

During rebuttal, the State called Lieutenant Helmich of the Rogers Police Department. Torres-Garcia objected to Helmich's testimony in rebuttal. The State responded that Helmich would testify that Torres-Garcia admitted to him that he had sex with Rivera and that Torres-Garcia had opened the door to the testimony in his cross-examination of Rivera when he asked her whether she had independent verification of her allegations. The court overruled Torres-Garcia's objection.

Helmich testified that he had investigated Torres-Garcia for the sexual assault of Rivera and that he interviewed Torres-Garcia on December 31, 2006. Helmich stated that in the interview, Torres-Garcia confessed to him that he had sex with Rivera on multiple occasions.

The State also asked Helmich whether Torres-Garcia had mentioned making threats to Rivera's family. Helmich responded, "He told me some of his associates had told [Rivera's] father that if he had gone to prison that [Rivera's father] would lose two more sons." Torres-Garcia objected to Helmich's response and argued that it was double hearsay because he testified to "other people's statements." The court overruled the objection.

The jury later found Torres-Garcia guilty of all three charges, and he was sentenced to an aggregate term of fifty years' imprisonment. This appeal followed.

On appeal, Torres-Garcia first argues that the circuit court erred by denying his directed-verdict motion on all three charges because the State presented insufficient evidence that he was a temporary caretaker or in a position of trust or authority over D.S.L. Rather, he asserts that D.S.L. was a temporary caretaker for his children. He further points out that the evidence did not show that he was D.S.L.'s coach or instructor or that her family had entrusted him with her care.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Estrada v. State, 2011 Ark. 3, 376 S.W.3d 395. The test for such motions is whetherthe verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, appellate courts review the evidence in the light...