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Ramirez v. State

Court of Appeals of Georgia, First Division

May 3, 2018

RAMIREZ
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Barnes, Presiding Judge.

         A jury found Huber Harm Ramirez guilty of multiple counts of child molestation and other related offenses, and the trial court denied his amended motion for new trial. On appeal, Ramirez contends that the evidence was insufficient to support his convictions, that he was not present during a critical stage of the trial proceedings, and that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

         "Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." Anthony v. State, 317 Ga.App. 807, 807 (732 S.E.2d 845) (2012). So viewed, the evidence showed that Ramirez lived with his wife, his two daughters, his stepdaughter, and his brother in Gordon County, Georgia. In September 2012, the stepdaughter started second grade. During that school year, Ramirez sexually abused his stepdaughter in the garage, the bathroom, his bedroom, and the kitchen. Ramirez told her not to tell anyone.

         In the garage, the stepdaughter was retrieving her bike when Ramirez told her to come over to where he was working out. Ramirez then pulled down his stepdaughter's pants and touched her genitals. He also touched her chest area underneath her shirt. The stepdaughter asked Ramirez to stop, but he told her to be quiet.

         In the bathroom, Ramirez took off his stepdaughter's pants and pulled up her shirt, and then he touched her genitals and her chest area. Ramirez also kissed his stepdaughter on the mouth in the bathroom and placed his mouth on her chest area. On another occasion, Ramirez removed his stepdaughter's towel while she was in the bathroom and put his penis on her genitals. According to the stepdaughter, "white stuff" came out of Ramirez's penis and onto her genitals and belly, and he wiped it off with toilet paper.

         In the mother and Ramirez's bedroom, Ramirez asked the stepdaughter to get in the bed with him, and after she complied, he grabbed her hand, placed it down his shorts, and made her "squish" his penis with her hand. Ramirez also placed his finger inside the stepdaughter's vagina on another occasion after calling her into the bedroom. She asked him to stop because it hurt, but he refused to do so.

         In the kitchen, Ramirez was cooking dinner, and his two daughters and his stepdaughter were there with him. When one of his daughters went to the restroom, Ramirez asked his other daughter to go to the closet and get an item that he needed for cooking. After his two daughters left the room, Ramirez touched his stepdaughter's breast and genitals over her clothing. Ramirez told his stepdaughter that he wanted to have sex with her in the bathroom.

         In April 2013, the stepdaughter disclosed to her second grade teacher that Ramirez would wait for her when she got out of the bathtub and that it made her feel uncomfortable. The teacher stopped the stepdaughter from making any further disclosures and took her to the school counselor. In the counselor's office, the stepdaughter said that Ramirez had been having sex with her. When asked by the counselor to elaborate on what she meant by "sex," the stepdaughter said that she was afraid to tell because she would get in trouble. After further assurances from the counselor, the stepdaughter described incidents that occurred in different rooms of her house where Ramirez touched her chest area and vagina and ejaculated on her chest. The stepdaughter told the counselor that her mother did not know about the abuse.

         A child protective services investigator with the Gordon County Department of Family and Children Services came to the elementary school that same day and spoke with the stepdaughter, who again described several of the incidents of sexual abuse that had occurred at her house. The case thereafter was assigned to a police investigator, who arranged for the stepdaughter to undergo a forensic interview. During the forensic interview, the stepdaughter described the incidents of abuse and marked on an anatomical drawing that Ramirez had touched her chest area and genitals and had touched her bottom "more than one time." The stepdaughter also wrote a short statement during the interview describing an incident in which Ramirez kissed her on the mouth and touched her genitals with his finger.

         The police investigator obtained a search warrant for Ramirez's house and photographed a workout bench in the garage and other features of the house that had been described by the stepdaughter in her disclosures about the sexual abuse. Additionally, a pediatric nurse practitioner conducted a physical exam of the stepdaughter and noted, among other things, that she was extremely sensitive to touch, which "usually means that touch to [the child] is painful." The nurse practitioner did not observe any signs of physical injury, but she explained that normal exam results are very common when there are allegations of child sexual abuse and that healing can take place with no residual signs of injury.

         Ramirez was arrested and tried on three counts of enticing a child for indecent purposes, nine counts of child molestation, and one count of aggravated sexual battery. The stepdaughter testified at trial and described how Ramirez had sexually abused her, and the second grade teacher, school counselor, and child protective services investigator testified about the disclosures that the stepdaughter made to them regarding the abuse. The pediatric nurse practitioner testified about her physical examination of the stepdaughter, the police investigator testified about his investigation of the abuse allegations, and a video recording of the forensic interview and photographs of the house where the abuse occurred were introduced into evidence. Ramirez elected to testify and denied that he had sexually abused his stepdaughter. He did not call any other defense witnesses.

         At the conclusion of the trial, the jury found Ramirez guilty on all of the counts listed above. Ramirez filed a motion for new trial, as amended, contending, among other things, that his trial counsel had rendered ineffective assistance. Following a hearing in which trial counsel, Ramirez, and the stepdaughter's mother testified, the trial court denied Ramirez's amended motion for new trial. This appeal followed.

         1. Ramirez contends that the evidence was insufficient to support his convictions for enticing a child for indecent purposes, child molestation, and aggravated sexual battery because the victim gave "vague, ambiguous, and inconsistent testimony." We disagree.

         As our precedent makes clear, "it is within the province of the jury to determine the credibility of witnesses, including the victim, and the weight to be given to their testimony. An appellate court cannot substitute its judgment for that of the jury; we neither weigh the evidence nor determine the credibility of witnesses." (Citation omitted.) Haslam v. State, 341 Ga.App. 330, 331 (801 S.E.2d 61) (2017). Here, the jury had before it for consideration, among other things, the stepdaughter's testimony regarding the sexual abuse, her recorded forensic interview, and the testimony of the second grade teacher, the school counselor, and the child protective services investigator about the stepdaughter's disclosures of abuse to them. Given this combined evidence, a rational jury was authorized to find Ramirez guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.E.2d 560) (1979). See OCGA §§ 16-6-4 (a) (child molestation); 16-6-5 (a) (enticing a child for indecent purposes); 16-6-22.2 (b) (aggravated sexual battery); Robinson v. State, 342 Ga.App. 624, 629 (1) (805 S.E.2d 103) (2017) (jury could consider victim's prior out-of-court allegations of sexual abuse made during forensic interview and to investigator as substantive evidence under the Child Hearsay Statute, OCGA § 24-8-820); Kirkland v. State, 334 Ga.App. 26, 33 (3) (778 S.E.2d 42) (2015) (jury could consider victim's "prior out-of-court statements about the abuse"); Ruffin v. State, 333 Ga.App. 793, 793 (1) (777 S.E.2d 262) (2015) (noting in case where defendant was found guilty of child molestation, aggravated sexual battery, and other sexual offenses that the "victim's testimony, standing alone, would have been sufficient to authorize a verdict of guilty").

         2. Ramirez contends that his constitutional right to be present at all critical stages of the trial proceedings was violated because he was not present at a bench conference during voir dire where the prosecutor's reasons ...


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