Cert. applied for.
Kidnapping, etc. Hall Superior Court. Before Judge Gosselin.
Lee Darragh, District Attorney, Kelley M. Robertson, William C. Akins, Assistant District Attorneys, for appellant.
Arturo Corso, for appellee.
MILLER, Judge. Doyle, P. J., and Dillard, J., concur.
Following a jury trial, Angel Martinez-Palomino was convicted of kidnapping (OCGA § 16-5-40 (a)), aggravated child molestation (OCGA § 16-6-4 (c)), and child molestation (OCGA § 16-6-4 (a) (1)). The State appeals from the trial court's grant of Martinez-Palomino's motion for new trial, as amended, on the basis that the court erred in allowing a video recording of the child victim's forensic interview to be played during jury deliberations. The State contends that there was no error in allowing the jury to view the video because the recording was properly admitted into evidence, the child victim and the forensic interviewer testified at trial and were available for cross-examination, [329 Ga.App. 305] and defense counsel agreed to allow the video recording to be played to the jury during its deliberations. For the reasons that follow, we reverse the trial court's grant of Martinez-Palomino's motion for new trial because there was no error in allowing the jury to view the video.
We review the grant of a motion for new trial on special grounds involving a question of law de novo and reverse if the trial
court committed legal error. State v. Clements, 289 Ga. 640 (1) (715 S.E.2d 59) (2011) (motion for new trial based on failure to dismiss juror); O'Neal v. State, 285 Ga. 361, 363 (677 S.E.2d 90) (2009) (motion for new trial based on prior denial of motion to sever).
Viewed in the light most favorable to the jury's verdict, the evidence shows that Martinez-Palomino and his girlfriend, Raquel Magos, were friends with and lived at the same Gainesville apartment complex as the victim's family. Martinez-Palomino was also a maintenance worker at the apartment complex.
On June 23, 2010, the then 12-year-old victim left her apartment and went for a walk. On her walk, the victim encountered Martinez-Palomino and his co-worker at the apartment complex mailboxes. Martinez-Palomino asked the victim if she wanted a cup of water, and the victim responded affirmatively. The victim then went with Martinez-Palomino and the co-worker to Martinez-Palomino's apartment.
At the apartment, Martinez-Palomino and his co-worker ate their lunch while the victim drank her water. At some point, the co-worker went out the front door to make a phone call. The victim then finished her water, thanked Martinez-Palomino, and turned to leave out the front door. Before the victim was able to reach the front door, however, Martinez-Palomino pulled her back by the waist and threw her onto the couch. Martinez-Palomino started kissing the victim on her mouth and neck and attempted to bite her mouth and ear. Martinez-Palomino then grabbed the victim ...