Veneros-Figueroa v. State

2021 Ark. App. 144

623 S.W.3d 122

Lazaro VENEROS-FIGUEROA, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-141

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: March 31, 2021

Lazaro Veneros-Figueroa, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON, Judge

Appellant Lazaro Veneros-Figueroa filed his pro se appeal after the Sevier County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Appellant argues on appeal that the circuit court erred in denying his petition for postconviction relief because (1) his trial counsel was ineffective in failing to challenge L.S.’s competency; (2) his trial counsel was ineffective in presenting damaging testimony; (3) his trial counsel was ineffective in failing to seek out and present expert medical testimony; and (4) his trial counsel was ineffective in failing to call other lay witnesses. We affirm.¹

I. Background

Before addressing the allegations of ineffective assistance of counsel, it is necessary to recite the evidence adduced at appellant's trial. Appellant was arrested and charged with raping his stepdaughter L.S. after L.S. disclosed to her mother that appellant had repeatedly subjected her to anal intercourse. At trial, L.S. testified that she was fourteen years old and that she understood that she swore to tell the truth. She explained that she knew that if she lied, she would be in trouble. She described in detail the incidents in which appellant had raped her and explained that appellant had begun by inappropriately touching her when she was eight years old. She explained that the first incident occurred inside a chicken house. At that time, appellant worked on a chicken farm, and she would help on the farm. L.S. testified that appellant continued to touch her under her clothes even after she told him to stop. While the incidents began with appellant inappropriately touching her, they continued to get worse and later involved anal intercourse. She stated that the incidents happened in the control rooms in the chicken houses on the farm and also in the family home. L.S. remembered that appellant would use blue paper towels to clean up after he had finished raping her when they were at the farm. Appellant stopped about three weeks before L.S. told her mother about the incidents on Ash Wednesday in 2015. L.S. stated that she was thirteen years old at that time. On cross-examination, L.S. testified that she had been having nightmares and that she had seen defense counsel in one of her nightmares, despite the fact that she had not met defense counsel prior to trial. She also admitted on cross-examination that she believed that she had previously seen a "spirit" friend who died.

Deputy Brian Hankins testified that he spoke with L.S. during his investigation and that L.S. told him that the incidents took place over several years. He took pictures and video of the chicken houses where L.S. told him some of the incidents happened. State trooper Ernesto Echevarria testified that he was called out to provide translating services on February 22, 2015, when the investigation began. Trooper Echevarria interviewed appellant after he had read appellant his Miranda rights. Appellant denied the allegations, but he admitted that L.S. helped him in the chicken houses and that the last time she helped was three weeks prior to February 22.

Odia Russette, a registered nurse employed by the Children's Advocacy Center of Texarkana (Advocacy Center), testified that she interviewed and examined L.S. L.S. told her about the incidents, and during a physical exam, Nurse Russette observed anal scarring consistent with L.S.’s allegations. Nurse Russette testified that L.S. did not report that she had any constipation or problems using the restroom at that time. However, Nurse Russette testified that she did not think constipation would cause the scarring she observed and instead opined that it was the result of an injury.

Appellant moved for a directed verdict at the close of the State's case, alleging that there were some "credibility issues" with L.S. because she had given "different stories" about the incidents. The trial court denied the motion.

Defense counsel first called Melanie Halbrook, the forensic interviewer at the Advocacy Center. Ms. Halbrook testified that she had interviewed L.S. on March 9, 2015. She further testified that L.S. had disclosed to her that the sexual abuse occurred in the chicken house and in the bathroom in her home from the time she was eight years old until she was thirteen years old. Ms. Halbrook described the details of the incidents that L.S. told her, which corroborated L.S.’s earlier testimony. Ms. Halbrook testified that she was not concerned with L.S.’s credibility simply because L.S. had delayed disclosing the details to her mother until several years after the sexual abuse started. Ms. Halbrook stated that delayed disclosure is very common, especially when a family member is involved. She also explained that grooming is when a sex offender is able to create a bond with the victim, sexualize that relationship, and keep it a secret. She testified that she saw signs of grooming in this case.

L.S.’s mother, Lorenza Sostenes, also testified in appellant's presentation of evidence. She testified that her daughter had constipation issues in the past that required her to give her enemas. Appellant's counsel asked Ms. Sostenes if she knew about L.S.’s "imaginary friend" or "spirit." Ms. Sostenes admitted that L.S. had told her "that there was a man that will talk through the [stuffed toy] owl and that one night he told [her] to start a fire in her room." On another occasion, L.S. told her that a girl at school had touched her inappropriately in a school bathroom when she was six years old. Ms. Sostenes testified that she made the report to the hotline after L.S. had disclosed appellant's abuse to her on Ash Wednesday. She further indicated that L.S. does not lie to her and that L.S. described the incidents with appellant to her in detail. Ms. Sostenes finally testified that she believed her daughter more than appellant because L.S. had nothing to gain by making the allegations.

Appellant testified on his own behalf and denied the allegations. Appellant moved for a directed verdict again after all the evidence was presented, and the trial court denied the motion. The jury convicted appellant, and appellant was sentenced to serve 360 months’ imprisonment. After appellant's conviction, he appealed, arguing that the trial court erred by allowing L.S. to testify when she was not competent. We affirmed, holding that we were precluded from addressing whether L.S. was competent because appellant failed to challenge L.S.’s competency as a witness at trial.

Veneros-Figueroa v. State , 2017 Ark. App. 94, 512 S.W.3d 692.

II. Petition for Postconviction Relief and Rule 37 Hearing

Following our affirmance, appellant filed his petition for postconviction relief, through new counsel, alleging that he was entitled to relief because his trial counsel was ineffective by trial counsel's (1) failure to challenge L.S.’s competency as a witness and move to exclude her testimony on the basis of her incompetency to testify; (2) decision to present highly damaging testimony by two witnesses in appellant's case-in-chief; (3) failure to seek out and present expert medical testimony to rebut the damaging testimony presented by Nurse Russette; and (4) failure to call other lay witnesses. An evidentiary hearing on appellant's petition was held on September 19, 2019, and appellant was represented by attorney Craig Lambert at the hearing.

At the hearing, Dr. Jay Douglas Holland testified on behalf of appellant. Holland is a family-practice doctor in Little Rock, Arkansas, and explained that he has experience in treating people with anal injuries; however, he had not had any specialized training regarding sexual assault. Dr. Holland testified that he had read the medical records and trial transcripts and opined that if appellant had been anally raping L.S. since she was eight years old, he would have expected there to be blood in L.S.’s underwear or that L.S. would have had problems with her bowels, necessitating a physician's assistance. Because L.S. testified that neither lubricant nor a condom was used, Dr. Holland further opined that he did not "see how that could happen without some more significant trauma[.]" Dr. Holland additionally questioned the plausibility of the positioning L.S. described during her testimony. He explained that L.S. would have trouble balancing if appellant anally penetrated her with her bending over and grabbing her ankles. He also expected a lot of trauma to occur if that position was used. Dr. Holland was also critical of Nurse Russette's² physical-examination findings and testimony. Contrary to Nurse Russette's trial testimony, Dr. Holland testified that he thought the scarring could have been very old and could have been caused by a history of constipation. In light of L.S.’s testimony regarding an imaginary friend or spirit, Dr. Holland thought L.S. needed more extensive evaluation and therapy. Although he admitted that he did not know what was going on with L.S., he thought "there is a real possibility in her age group to exaggerate any story she tells." On cross-examination, however, Dr. Holland admitted that Nurse Russette testified that the scarring was consistent with L.S.’s testimony and not that the scarring conclusively meant appellant had raped her. Dr. Holland further admitted that he did not know the size of appellant's penis, and he agreed that if appellant has a small penis, he may not have caused L.S. any damage.

Leo Monterrey, appellant's trial counsel, testified that he could not find any witnesses who were willing to cooperate and testify on appellant's behalf. Mr. Monterrey...