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Ventura v. State

Court of Appeals of Georgia, First Division

June 14, 2018


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

          Barnes, Presiding Judge.

         Jorge Ventura was convicted by a Cobb County jury of two counts of child molestation and one count of enticing a child for indecent purposes. Thereafter, Ventura filed a motion and amended motion for new trial, which the trial court denied. On appeal, Ventura contends that the prosecutor should have been disqualified because of a conflict of interest, the trial court erred by failing to permit questions about witness bias or motive, trial counsel was ineffective, and that he did not have proper notice that he might be charged with the lesser included offense of child molestation. Upon our review and consideration of Ventura's alleged errors, we affirm.

         1. Ventura does not challenge the sufficiency of the evidence, however, construed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that after Ventura met the victim on Facebook, he visited her at her home, forced the 13-year-old victim into her bedroom, locked the door, pulled down her pants, and inserted his finger into her vagina and fondled her breasts. This evidence was sufficient for a rational trier of fact to find Ventura guilty of the crimes charged beyond a reasonable doubt. See Castaneda v. State, 315 Ga.App. 723 (1) (727 S.E.2d 543) (2012).

         2.Ventura contends that the prosecutor had a conflict of interest and should have been disqualified because her husband had previously represented him in an unrelated felony case in Cobb County. He contends that during his representation the prosecutor's husband learned confidential information about him which he "may have unwittingly shared" with the prosecutor. Further, according to Ventura, the same rules of professional conduct which prohibit partner and associates at a disqualified attorney's law firm from accepting employment, should be employed in this circumstance. In denying Ventura's motion for new trial on this ground and ascertaining no conflict of interest, the trial court found that nothing in the Georgia Rules of professional conduct prohibit a prosecutor from prosecuting the former client of his or her spouse. We agree.

         During the preliminary hearing before trial, the prosecutor disclosed that her husband had previously represented Ventura in a 2010 conviction for terroristic threats. And that, in the event Ventura elected to testify, "the State could be tendering that certified conviction against Ventura." Ventura's attorney responded that he did not see "any conflict . . . [with] the mere fact that [the prosecutor's] husband stood beside [Ventura] when he entered a plea." Ventura acknowledged that he was aware of the relationship, but responded when asked if he was satisfied that there was no conflict,

you're husband and wife. I mean, you talk to each other every day and every night . . . Hey, guess what. I got your - the one you represented for terroristic threat, he pleading guilty or whatever, I'm going to take him to trial. So to be honest with you I don't know, to be honest with you.

         Thereafter, the trial court found that it "was satisfied that here's no significant conflict, or no conflict with respect to proceeding with this case based upon that sole fact. And particularly the fact that . . . it was something you were able to discuss at some time prior to the time of trial."

         In liberally construing the prosecutor's disclosure and Ventura's response as a motion to disqualify,

[w]e apply an abuse of discretion standard when reviewing a trial court's ruling on a motion to disqualify a prosecutor. See Head v. State [253 Ga.App. 757');">253 Ga.App. 757, 758 (2) (560 S.E.2d 536) (2002)] (abuse of discretion standard applies to rulings on motion to disqualify). Such an exercise of discretion is based on the trial court's findings of fact which we must sustain if there is any evidence to support them.

Whitworth v. State, 275 Ga.App. 790, 791 (1) (622 S.E.2d 21) (2005).

There are two generally recognized grounds for disqualification of a prosecuting attorney. The first such ground is based on a conflict of interest, and the second ground has been described as "forensic misconduct." For example a conflict of interest has been held to arise where the prosecutor previously has represented the defendant with respect to the offense charged, or has consulted with the defendant in a professional capacity with regard thereto; such conflict also has been held to arise where the prosecutor has acquired a personal interest or stake in the defendant's conviction. In applying these standards, the reversal of a conviction due to such a conflict of interest requires more than a theoretical or speculative conflict. An actual conflict of interest must be involved.

(Citations and punctuation omitted.) Id. 793 (1) (b).

         Ventrura's assertion that the prosecutor's marriage to an attorney that represented him in an unrelated plea three years earlier might result in the prosecutor gaining confidential information in the prosecution of an unrelated case, amounts to the type of status disqualification that the Georgia Supreme Court rejected in Blumenfeld v. Borenstein, 247 Ga. 406 (276 S.E.2d 607) (1981). There, the Court refused to assume a per se rule of disqualification on the sole ground of a marital relationship between the attorneys. Id. at 410. The Court held where, as is the case here, "the appearance of impropriety [is] based not on conduct but on status alone. This is an insufficient ground for disqualification." Id. As the Court reasoned, "[w]hile we cannot disagree with the proposition that the marital relationship may be the most intimate relationship of a person's life, it does not follow that professional people allow this intimacy to interfere with professional obligations." Id. at 408. See Jones v. ...

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