BARNES, P. J., MERCIER and BROWN, JJ.
BARNES, PRESIDING JUDGE.
a trial with a co-defendant, the jury found Andy Fabricio
Carcamo Maradiaga guilty of rape and kidnapping.
Carcamo appeals from his conviction and sentence,
as well as the denial of his motion for new trial, arguing
that the trial court erred in denying his motion to sever his
trial from that of his co-defendant and that his trial
counsel rendered ineffective assistance. For the reasons
discussed more fully below, we affirm.
criminal conviction, we view the evidence in the light most
favorable to the verdict, and the defendant is no longer
presumed innocent. Person v. State, 340 Ga.App. 252,
252-253 (797 S.E.2d 172) (2017). So viewed, the evidence
showed that on the night of November 29, 2014, the victim and
her twin sister were celebrating their twenty-first birthdays
with friends in the downtown area of Savannah, Georgia. The
celebration lasted into the early morning hours of November
30, 2014, and the victim became heavily intoxicated. Around
2:18 a.m., the victim and one of her friends were escorted
out of a club after an employee discovered them sitting on a
back stairwell that was not open to patrons. According to the
employee, the victim and her friend were noticeably
intoxicated, and he "had to hold them up while bringing
them out" of the club. Once outside the club, the victim
remained near the front door because she was unable to stand
on her own and kept falling down. While outside, the victim
became separated from her friend.
and his friend (co-defendant Eric Fernando Reyes
Castro) were at the same club that night. Carcamo
was standing near the front door of the club when he saw the
victim repeatedly fall to the ground after the employee
escorted her outside. Carcamo and Reyes approached the
victim, supported her on her feet, and "were trying to
take her" when a club employee who believed the
situation was a "little sketchy" began questioning
them. Carcamo and Reyes assured the employee that the victim
"was their good friend and they would take care of
her," and the employee let them go. Carcamo and Reyes
placed the victim's arms over their shoulders and
supported her weight between them as they walked with her
away from the club while her head hung toward the ground.
walking away from the club, Carcamo lifted up the victim and
carried her down the street as Reyes followed behind them
while talking on his cell phone. When they reached the
parking lot where Reyes's car was parked, Reyes unlocked
his vehicle and opened the door, and Carcamo placed the
victim on the backseat, where he had sexual intercourse with
her while she was unconscious. Reyes stayed on his cell phone
and got in and out of the front seat of the car.
military serviceman who was walking in the area saw Carcamo
carrying the unconscious victim down the street followed by
Reyes on his cell phone. According to the serviceman, Carcamo
kept looking back at Reyes and nodding for him to hurry up.
Because something "did not seem right," the
serviceman followed them until they arrived at Reyes's
car. The serviceman could not see what then occurred in the
backseat because the windows were fogged from the inside, but
he saw Reyes on his phone getting in and out of the car.
serviceman left the scene and located two police officers
about a half a block away from the parking lot, and he told
them what he had observed. The two officers immediately
proceeded to the parking lot on foot and were joined by
another officer and a detective who were already in the area.
The officers and detective approached the parked car and saw
Reyes in the front seat and Carcamo in the backseat having
sexual intercourse with the unconscious victim. Reyes got out
of the car and claimed not to know Carcamo or the victim.
Carcamo pulled up his pants and got out of the car, but the
victim remained motionless in the backseat with her genitals
exposed. According to one officer, the victim "appeared
lifeless, was not moving, and at that point I couldn't
even tell if she was breathing or not." The detective
described the victim as "exposed, unconscious, [and] not
moving" and testified that he "didn't know if
she was . . . dead or alive at that point." After
several minutes, the detective was able to get the victim to
sit up, but she vomited several times, drifted in and out of
consciousness, spoke incoherently, and could not stand up.
The detective used the victim's cell phone to call her
sister, and the victim's sister and friends then came to
the scene and told the detective that they did not know
Carcamo and Reyes and did not know why the victim would have
been with them.
and Reyes were detained and taken to police headquarters,
while the victim was transported by ambulance to the
hospital. The detective went to the hospital and interviewed
the victim, who was still heavily intoxicated at that point
and did not remember what had happened. The interview was
audio-recorded and was later played for the jury, and the
victim testified at trial that she did not know Carcamo and
Reyes and had no memory of what had occurred with them that
at the hospital performed a sexual assault examination on the
victim and noted that she was heavily intoxicated, was in and
out of consciousness, was disoriented, and had vomit in her
hair, a red mark on her shoulder, bruising on her knee, and
dirt on her leg. The nurse took vaginal and other swabs from
the victim as well as blood and urine samples. A blood
toxicology test showed that the victim had a blood alcohol
level of .197 grams per 100 milliliters, which, according to
a forensic toxicology expert who testified at trial, would
have been between .242 and .272 grams per 100 milliliters
approximately three hours before the victim's blood was
drawn. The toxicologist opined that at that blood alcohol
level, the average social drinker would experience mental
confusion, double or blurred vision, heavily slurred speech,
and lack of muscle coordination.
interviewing the victim at the hospital, the detective went
to police headquarters, where Reyes agreed to an interview.
Reyes told the detective that he and Carcamo were friends but
had arrived separately at the club; that Carcamo introduced
the victim as his girlfriend; that Carcamo asked him for a
ride home; and that he had agreed to provide Carcamo a ride.
Reyes said that he did not know the victim's name, and at
one point during the interview, according to the detective,
Reyes "shook his head and mentioned something about
being stupid or doing something stupid, something to that
effect." Although Reyes initially claimed that all three
of them had walked to the car, Reyes later admitted that the
victim had not walked. Reyes also said that when they were in
the car, he had been talking to his girlfriend and texting on
his cell phone, and he had heard Carcamo and the victim
talking and having sex in the backseat.
detective seized Reyes's cell phone, and a digital
forensic examination of the phone was conducted after a
search warrant was obtained. During the approximate time
period when the victim was inside Reyes's car,
Reyes's phone contained incoming and outgoing calls to a
"Carlos Gomez," as well as a text message written
in Spanish to "Carlos" using the WhatsApp Chat
application. The text message, when translated into English
by an expert translator at trial, read: "Carlos, a
drunken broad landed here. Bring the sweater and we're
going to mount her." The translator testified that
"sweater" in this context could be slang for
agreed to a second interview with the detective, who
confronted him with the text message. Reyes admitted that one
of the Spanish phrases in the text message referred to
"a girl who was really drunk" and that another
phrase meant "to fuck." Reyes initially denied that
he had planned to have sex with the victim, but then
admitted, when the detective confronted him with the specific
wording of the text message, that he and Carcamo "were
going to have sex with the girl."
detective obtained a search warrant for swabs from Carcamo
for the purpose of a DNA comparison. When the detective was
collecting the swabs, Carcamo made the unprompted statement,
"I'm sorry for last night." Subsequent DNA
testing showed Carcamo's DNA present on swabs taken from
the victim's vagina and the victim's DNA on swabs
taken from Carcamo's penis, and the DNA results were
introduced at trial through the forensic biologist who
performed the testing at the crime lab.
of his investigation, the detective also obtained video
camera footage from several locations in the downtown
Savannah area, including footage from the club, a nearby
restaurant, and the city's street cameras. The detective
compiled a single video of the relevant time periods from the
video camera footage, which was introduced as an exhibit at
trial by stipulation of the parties and played for the
jury.Among other things, the video footage
showed Carcamo and Reyes walking away from the club with the
victim between them with her arms over their shoulders as her
head hung toward the ground, and Carcamo then carrying the
motionless victim down the street as Reyes followed him.
and Reyes were indicted on charges of rape and kidnapping.
Carcamo filed a motion to sever his trial from that of Reyes,
and the trial court denied the motion. At the ensuing joint
trial, after the State presented its case-in-chief, Reyes
elected not to testify. Carcamo took the stand and testified
that he and Reyes had come to the club in Reyes's car and
that they had been at the club with another friend named
Carlos Gomez. Carcamo testified that he approached the victim
after she fell outside the club and her friend left, and he
admitted that the victim had been drunk, that she had trouble
walking, that he had picked up the victim and carried her,
that he put her in the car, and that he had sex with her.
However, Carcamo claimed that the victim was "[d]runk,
but not unconscious," that he had initiated the sexual
encounter after they briefly talked in the backseat of the
car, and that he did not force the victim to have sex with
him. Carcamo testified that the reason he told the detective
he was "sorry for last night" was because he was
afraid that the victim was a minor.
jury found Carcamo guilty of the charged
offenses. The trial court conducted a sentencing
hearing, and on the rape count, the court sentenced Carcamo
to 25 years in prison without the possibility of parole,
followed by life on probation. On the kidnapping count, the
trial court sentenced Carcamo to 15 years in prison without
the possibility of parole, consecutive to the rape count.
Carcamo filed a motion for new trial, as amended, in which he
contended, among other things, that his trial counsel had
rendered ineffective assistance. Following a hearing on the
motion for new trial in which Carcamo's trial counsel
testified, the trial court denied the motion, resulting in
the present appeal.
Carcamo contends that the trial court erred by failing to
sever his trial from that of Reyes.
two or more defendants are jointly indicted . . . for a
felony less than capital, . . . such defendants may be tried
jointly or separately in the discretion of the trial
court." OCGA § 17-8-4 (a). "Since the grant or
denial of a motion to sever is left in the discretion of the
trial court, its ruling will only be reversed for an abuse of
discretion." Baker v. State, 238 Ga. 389, 391
(2) (233 S.E.2d 347) (1977).
It is incumbent upon the defendant who seeks a severance to
show clearly that the defendant will be prejudiced by a joint
trial, and in the absence of such a showing, the trial
court's denial of a severance motion will not be
disturbed. Factors to be considered by the trial court are:
whether a joint trial will create confusion of evidence and
law; whether there is a danger that evidence implicating one
defendant will be considered against a co-defendant despite
limiting instructions; and whether the defendants are
asserting antagonistic defenses. The burden is on the
defendant requesting the severance to do more than raise the