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Gonzales v. State

Court of Appeals of Georgia, Fifth Division

March 16, 2018

GONZALES
v.
THE STATE

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         On appeal from his conviction for aggravated sexual battery and child molestation, Miguel Gonzales argues that his trial counsel was ineffective for failing to ask the victim's mother her opinion about the victim's truthfulness. We agree and we find that the deficient performance was prejudicial. So we reverse Gonzales's convictions. Because the evidence is legally sufficient to support the convictions, Gonzales may be retried. Accordingly, we address three issues that could occur upon retrial. We reject Gonzales's arguments that the trial court erred by refusing to allow counsel to ask the victim whether she always told the truth; by refusing to allow counsel to ask prospective jurors whether they believed Gonzales was guilty; and in instructing the jury.

         1. Facts.

         "On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         So viewed, the record shows that between 2004 and 2007, when the victim was between four and seven years old, she lived with her family and Gonzales. In the spring of 2007, Gonzales would often pick up the victim from elementary school and drive her to the family's apartment. On one occasion, Gonzales picked up the victim, took her home, and accompanied her into the bedroom, where the victim, her mother, her sister, and Gonzales routinely slept in the same bed. Once in the bedroom, Gonzales touched the victim's vagina through and then underneath her clothing. Unaware that Gonzales had picked up the victim from school on this day, the victim's mother called police. When the mother and the police arrived at the apartment, they saw Gonzales's taxi outside. According to the victim, Gonzales stopped fondling her only when her mother and police knocked on the door of the apartment.

         Gonzales soon moved out of the family's apartment, but remained on good terms with them, and would often pick the girls up, take them to his apartment, and help them with their homework. On one such occasion, Gonzales was on his bed with the two girls when he began taking off the victim's pants and underwear, eventually penetrating her vagina with his finger. Although Gonzales told the victim to "just [ ] let him do what he was doing, " the victim screamed, awakening her sister, who saw that Gonzales was taking off the victim's pants. Gonzales stopped touching the victim and ran out of the room. On another occasion in Gonzales's bedroom, he took the victim's hand and placed it on his penis.

         In March 2013, Gonzales picked the victim up from school and was taking her to a dental appointment when he stopped at a red light or stop sign and put his hand on the victim's vagina. Although the victim removed his hand, Gonzales "kept putting his hand back, " at which the victim began to cry. On March 28, 2013, the victim told a school guidance counselor that a family friend named Miguel had "tried to molest her in his taxi" on the way to a doctor's appointment and that he had molested her "in the past." When the school principal notified the victim's mother, the victim told her "everything that had happened, " including that Gonzales had been "molesting her since she was seven years old, " touching her "with [her] clothes [on] and without."

         Gonzales was arrested and charged with child molestation arising from the first touching incident, which was alleged to have occurred between April 3, 2007, and April 2, 2008 (Count 1); aggravated sexual battery arising from the incident witnessed by the victim's sister and child molestation arising from the incident of Gonzales placing the victim's hand on his penis, both of which were alleged to have occurred between April 3, 2007, and March 21, 2013 (Counts 2 and 3); and child molestation arising from the incident in Gonzales's taxi, which was alleged to have occurred "on or about" March 22, 2013 (Count 4). After a jury found Gonzales guilty of Counts 1, 2, and 4, [1] he was convicted and sentenced to 25 years to serve. His motions for new trial were denied.

         Although Gonzales does not challenge the sufficiency of the evidence against him, we have reviewed the record, and conclude that the evidence was sufficient to sustain his conviction. See OCGA §§ 16-6-4 (a) (defining child molestation), 16-6-22.2 (b) (defining aggravated sexual battery); Burke v. State, 208 Ga.App. 446, 446 (1) (430 S.E.2d 816) (1993) (evidence including that the defendant penetrated the victim's vagina with his finger supported his conviction for aggravated child molestation and aggravated sexual battery); Jackson, supra, 443 U.S. at 319 (III) (B).

         2. Victim's truthfulness; ineffective assistance of counsel.

         Gonzales asserts that (a) the trial court erred when it refused his request to ask the victim whether she always told the truth, thus allegedly revealing a character trait for untruthfulness and that (b) trial counsel was ineffective in failing to elicit testimony on this subject from either (i) the victim or (ii) her mother. We find that the trial court did not err by refusing to allow counsel to ask the victim whether she always told the truth and that counsel was not ineffective in this regard. But we find that counsel's decision not to elicit testimony from the mother amounted to ineffective assistance of counsel.

         (a) OCGA § 24-6-608 (b) provides in relevant part:

Specific instances of the conduct of a witness[ ] for the purpose of attacking or supporting the witness's character for truthfulness . . . may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) [c]oncerning the witness's character for truthfulness or untruthfulness; or (2) [c]oncerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

         (Emphasis supplied.) "[A]s a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse." Anderson v. State, 337 Ga.App. 739, 742 (1) (788 S.E.2d 831) (2016) (citation and punctuation omitted). Although a defendant is entitled to a "thorough and sifting" cross-examination, for example, a trial court has broad discretion in determining the scope and relevancy of that examination. Morris v. State, 341 Ga.App. 568, 570-571 (1) (802 S.E.2d 13) (2017). And this Court has noted that OCGA § 24-6-608 authorizes only "the use of specific instances of conduct in order to attack (or support) a witness's character for truthfulness[.]" Gaskin v. State, 334 Ga.App. 758, 762 (1) (a) (780 S.E.2d 426) (2015) (emphasis supplied).

         The victim's therapy records, which the trial court reviewed but excluded from evidence, included a therapist's notes that the victim had "a history of lying to her mother" and that the mother had told the therapist that she could not trust the victim because the victim "constantly lies to her and does things to be vindictive." When Gonzales sought to ask the victim, "Do you always tell the truth?" the trial court sustained the State's objection to the question. Later in the trial, Gonzales asked the court to reconsider its ruling and sought to ask whether the victim "tell[s] the truth to figures of authority?" The trial court disallowed this question as well on the ground that it was impermissible character evidence.

         Both of the questions Gonzales sought to ask of the victim - "Do you always tell the truth?" and "[Do you] tell the truth to figures of authority?" - were so broadly phrased as to have no other effect than to prove a general character trait for untruthfulness. Because these questions did not seek to investigate any specific "act probative of untruthfulness, " Gaskin, 334 Ga.App. at 763 (1) (a), there was no abuse of ...


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