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Chavez v. State

Court of Appeals of Georgia

October 3, 2014

CHAVEZ
v.
THE STATE

Page 448

Effective assistance of counsel. Gwinnett Superior Court. Before Judge Tate, pro hac vice.

Matthew D. Crosby, for appellant.

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

ANDREWS, Presiding Judge. McFadden, J., concurs. Ray, J., concurs in Divisions 1 and 2 and in judgment in Division 3.

OPINION

Page 449

Andrews, Presiding Judge.

A Gwinnett County jury found Antonio Cacique Chavez guilty of one count of rape (OCGA § 16-6-1), one count of aggravated sexual battery (OCGA § 16-6-22.2), two counts of aggravated child molestation (OCGA § 16-6-4 (c)), and one count of child molestation (OCGA § 16-6-4 (a)). The trial court denied Chavez's motion for new trial as amended, and Chavez appeals, arguing that he received ineffective assistance of trial counsel due to a host of alleged errors. We affirm.

Viewed in a light most favorable to the jury's verdict, the evidence adduced at trial revealed that the victim lived with her mother, brothers, sister-in-law and nephew at a residence in Gwinnett County. The family moved to the house when the victim was approximately eight years old. At the same time, Chavez moved into the residence and subsequently began a sexual relationship with the victim's mother. Initially, the victim liked Chavez because he played games [329 Ga.App. 208] with her and helped take care of her when her mother worked a night-shift job. Her feelings for Chavez changed, however, when he did " bad stuff" to her.

The " bad stuff" began with Chavez asking the victim to play with him and then removing her pants and touching her " private part" over her underwear. The incident made the victim feel " scared," but she did not tell anyone due to Chavez's threat that they would get in trouble. Some time thereafter, Chavez continued his abuse of the victim by putting his " private part on [the victim's] private part" under her clothes and inserting his penis inside her vagina. The victim also explicitly described Chavez's ejaculate, Chavez digitally penetrating her vagina and moving his fingers around, Chavez making the victim place her hands on his penis, and instances of oral intercourse in which Chavez placed the victim's mouth on his penis and inserted his tongue in the victim's vagina. Chavez also showed pornographic videos to the victim. These occasions made the victim feel " nasty" and made her want " to throw up." The victim also witnessed acts of sexual intercourse between Chavez and her mother.

After several instances of abuse, the victim finally told her sister-in-law about Chavez's actions, after which she felt " happy" and " relieved." The sister-in-law reported the abuse to the victim's mother, and the three of them proceeded to a local hospital where staff reported the incident to law enforcement.

At trial, the victim's second cousin testified as a similar transaction witness. Chavez lived with the cousin's family in Kansas and was evicted when his abuse of the cousin was discovered; Chavez then moved in with the victim and her family in Gwinnett County. The cousin described a similar initial affection for Chavez, followed by instances of sexual abuse culminating in her outcry to her brother and parents and resulting in Chavez's expulsion from their home.[1]

In his sole enumeration of error, Chavez contends that he received ineffective assistance of trial counsel.

Under ...


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