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Cordova v. State

Court of Appeals of Georgia, Second Division

August 16, 2019

CORDOVA
v.
THE STATE.

          MILLER, P. J., RICKMAN and REESE, JJ.

          REESE, JUDGE.

         A Rockdale County jury found George Cordova, Jr., guilty of burglary in the first degree, [1] cruelty to children in the first degree, [2] cruelty to children in the third degree, [3] terroristic threats, [4] and two counts of aggravated assault.[5] The trial court sentenced him to serve a total of 65 years, with the first 40 years in confinement and the remainder to be served on probation. The Appellant seeks review of the denial of his motion for new trial, arguing that the trial court erred in denying his motion to suppress and in allowing the State to introduce evidence of other crimes, and that the evidence was insufficient to convict him. For the reasons set forth infra, we affirm. This is the second appeal of the Appellant arising from events that occurred on November 24, 2013.[6] Viewed in the light most favorable to the jury's verdict, [7] the record shows that R. G. and J. M. lived on Gees Mill Road in Rockdale County with their four children and a nephew on November 24, 2013. At approximately 3:30 a.m. that morning, R. G. woke up and saw an unknown person walk into her bedroom. She woke her husband and told him "somebody's here." When R. G. called out to the person he backed out of the room, "crawling on his knees[.]" R. G. ran into the living room and saw her nephew sleeping on the sofa. She ran to her daughters' bedroom and saw a person "hiding" behind the door. R. G. turned on the light, saw that her two daughters, 11-year old N.M. G. and 12-year old J. M. G., were still sleeping, and immediately yelled to J. M., "there's someone here." J. M. G. ran into his daughters' bedroom and pushed and dragged the intruder into the hallway. R. G. testified that she saw her daughter's blanket wrapped around the intruder, while her husband pushed him out of the bedroom. R. G. testified that the intruder wore all dark clothing and "he looked like he'd been drinking." Although R. G. wanted to call the police, J. M. G. told her that "maybe [the intruder] was sick and cold. He just came in to get a blanket." J. M. watched the intruder leave the home.

         After J. M. checked all the residence's outside doors, R. G. turned on the hallway light and cracked open her bedroom door, and the family returned to bed. R. G. remained awake however, thinking of the intruder, until she saw the hallway light turn off. R. G. testified that she sat up but did not get up because she "felt very nervous." Suddenly, R. G. heard "low screams[ ]" coming from N.M. G. R. G. ran to the children's room and saw the intruder "poking" her other daughter, J. M. G., with a knife while holding N.M. G.'s feet.

         N. M. G. testified that the intruder told her and J. M. G. that if they screamed, he would "cut" J. M. G. J. M. G. testified that the intruder put the knife close to her neck, and told her "not to say anything [or] call anybody or he would hurt [her.]" She further testified that she received a cut on her hand and thought the intruder was going to "[k]ill" her.

         R. G. yelled for J. M., who ran back into his daughters' bedroom and struggled with the intruder. R. G. testified that she yelled for her nephew to call the police while the intruder tried to cut J. M. with the knife. J. M. pushed the intruder out of the bedroom.

         At around 4:30 a.m., Rockdale County Sheriffs' deputies and City of Conyers police officers responded to a call reporting a possible burglary at the residence of R. G. and J. M., located on Gees Mill Road. While responding to the call, a deputy saw a man, later identified as the Appellant, cross in front of his vehicle from a "wood line" or "clearing" located at the entrance of a nearby subdivision. The deputy testified that he observed the Appellant walking at approximately 5:20 a.m., wrapped in a "bright colored Disney blanket." The deputy testified that he questioned the Appellant. During the questioning, the Appellant appeared to understand the questions and responded to them. The Appellant told the deputy that he had come from his "nephew and niece's house." The deputy testified that the Appellant stated he had obtained the blanket from his niece.

         The deputy identified State's Exhibit 19 as the blanket found on the Appellant. The deputy read the Appellant the Miranda[8] warnings and placed him into custody. A police officer searched the area and found a knife lying on the ground close to the Appellant.

         During the trial, two videos of the police stop of the Appellant were played for the jury. Also, the police interviews of J. M. G. and N.M. G. were played for the jury.

         At trial, R. G. identified the intruder's knife found near the Appellant as one that was missing from her kitchen, and identified the blanket found near the Appellant as belonging to her daughter. Also, she identified the intruder as the Appellant in court. J. M. identified the knife found near the Appellant as one of his family's kitchen knives. J. M. also identified the blanket worn by the intruder as he left J. M.'s home as one of his daughter's blankets.

         The State also introduced the testimony of M. L., who lived on Millstone Manor, in "close proximity[ ]" to Gees Mill Road. M. L. testified that the Appellant had attended a birthday party at his (M. L.'s) residence on the evening of November 23, 2013. Around 2:30 a.m. on the morning of November 24, people began leaving the party, and M. L. asked a friend where the Appellant was located. The friend pointed to M. L.'s daughter's room. M. L. went to his daughter's room, turned the light on, and saw the Appellant there with M. L.'s five-year-old daughter and his unconscious sister, who earlier that evening, had "a little to much to drink." M. L. "grabbed . . . and had dragged [the Appellant] out of the room[, ]" and escorted him out of the home.

         After his conviction on the instant charges, the Appellant filed a motion for new trial. The trial court conducted a hearing, and denied the Appellant's motion. This appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [9] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[10]

         "The standard of Jackson v. Virginia[11] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."[12] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant argues that the evidence was insufficient to support his convictions for burglary, aggravated assault, terroristic threats, and cruelty to children. Specifically, the Appellant contends that the State failed to establish his identity as the perpetrator of each of crimes charged in the indictment. We conclude that there was sufficient evidence for the jury to conclude, beyond a reasonable doubt, that the Appellant's identity was established as the perpetrator of each of the crimes, as indicted.

         (a) Burglary

         OCGA § 16-7-1 (b) states, in relevant part that, "[a] person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied . . . dwelling house of another[.]" The State charged the Appellant in Count 1 of the indictment with burglary for entering the Gees Mill Road residence" without authority and with the intent to commit an [a]ggravated [a]ssault[.]"

         Here, the record shows that neither R. G. nor J. M. gave the Appellant permission to enter their home. Further, R. G. identified the Appellant as the intruder who entered her home twice without permission, held a knife to her daughter's neck, and struggled with J. M. as he tried to remove the Appellant from the home. Thus, the evidence was sufficient to support the Appellant's burglary conviction.[13]

         (b) Aggravated assault and terrorist threats

         According to OCGA § 15-5-21 (a) (2), "[a] person commits the offense of aggravated assault when he or she assaults: [w]ith intent . . . a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]" Under OCGA § 16-11-37 (b) (1) (A), "[a] person commits the offense of a terroristic threat when he . . . threatens to [c]ommit any crime of violence[.]" Further, under OCGA § 16-11-37 (b) (2) (A), (b) (3), "[s]uch terroristic threat shall be made [w]ith the purpose of terrorizing another[, and n]o person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated."

         In Counts 2 and 3 of the indictment, the State charged the Appellant with two counts of aggravated assault for "assault[ing J. M. G. and J. M.] with a knife[, ] which . . . placed [them] in reasonable apprehension of immediately receiving a violent injury[.]" Further, the State charged the Appellant in Count 5 with making a terroristic threat "to commit . . . murder, a crime of violence, with the intent to terrorize [J. M. G.]"

         The State presented evidence at trial that the Appellant held a knife to J. M. G.'s neck upon entering her bedroom and threatened to hurt her, in the presence of N.M. G., who heard the Appellant's statement. Also, the record shows that J. M. struggled with the Appellant, who was holding a knife, to remove him from the girls' bedroom after the Appellant gained entry a second time into J. M.'s home. Therefore, the evidence was sufficient to support the Appellant's convictions on the crimes as indicted in Counts 2, 3, and 5.[14]

         (c) Cruelty to children

         Under OCGA § 16-5-70 (b), "[a]ny person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain." Cruelty to children in the third degree, prohibited by OCGA § 16-5-70 (d), is committed when "the primary aggressor[ ] intentionally allows a child under the age of 18 to witness the commission of a forcible felony, battery, or family violence battery[ ]" or knows that a child under the age of 18 is present and sees or hears such criminal act.

         Counts 4 and 6 charged the Appellant with "caus[ing J. M. G.] cruel and excessive mental pain[ by] awak[ening her] from sleep and [placing] a knife to [her] head[, ]" while [knowing that N.M. G.] was present and [saw] and [heard the Appellant], ...


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