Cisneros v. the State

780 S.E.2d 360, 334 Ga. App. 659, 2015 WL 7269004
CourtCourt of Appeals of Georgia
DecidedNovember 23, 2015
DocketA15A1257
StatusPublished
Cited by3 cases

This text of 780 S.E.2d 360 (Cisneros v. the State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cisneros v. the State, 780 S.E.2d 360, 334 Ga. App. 659, 2015 WL 7269004 (Ga. Ct. App. 2015).

Opinions

ELLINGTON, Presiding Judge.

Gustavo Cisneros and eight others1 were indicted in the Superior Court of Gwinnett County for crimes arising out of a series of home invasions. Cisneros was tried separately in 2008 on the 24-count indictment, and the jury found him guilty of eight counts of burglary (Counts 1, 5, 7, 9, 12, 15, 18, and 22),2 six counts of armed robbery (Counts 2, 6, 8, 10, 13, and 16),3 two counts of criminal attempt to commit armed robbery (Counts 19 and 23),4 two counts of aggravated sexual battery (Counts 3 and 4),5 and one count of sexual battery (Count 14).6 The jury found him not guilty on the remaining five counts. On appeal, Cisneros claims that the evidence was insufficient to support his convictions on Counts 1 through 10,14,18, and 19. He also contends that he received ineffective assistance of trial counsel. For reasons that follow we conclude that the evidence was insufficient as to Counts 1 through 6,18, and 19, and we reverse Cisneros’s convictions as to those counts. The remainder of Cisneros’s convictions are affirmed.

Viewed in a light most favorable to the jury’s verdict,7 the evidence shows that from February to April 2004, several Gwinnett County homes were invaded by masked gunmen who tied up their victims and stole money, jewelry, and other property. In chronological order, and by reference to the street on which they occurred and the corresponding counts of the indictment for which Cisneros was convicted, the home invasions at issue are as follows:

Oakland Walk Court (Counts 1 through 4). During the early morning of February 25, 2004, a resident of a home on Oakland Walk heard a loud noise; shortly thereafter, “four or five” masked men armed with guns entered her bedroom. The men pointed guns at her and demanded money, and she gave them her gold jewelry. They also took her cell phone and the keys to her van. One of the men then penetrated the victim’s vagina with his hand. Before they left, the men tied her hands behind her back with shoelaces and gagged her.

[660]*660The first victim’s mother was also in the house. Five masked gunmen, who were speaking in Spanish, knocked down the door to her bedroom, and one of them hit her in the head with his gun. The men took some compact discs and jewelry, and they demanded money, after which she gave them $100. One of the men put his hand in the second victim’s vagina. Before leaving, they tied her hands and feet with shoelaces and put tape over her mouth.

River Landing Drive (Counts 5 and 6). On March 5, 2004, the residents of a home on River Landing Drive, two adults and their young child, were asleep in the master bedroom when they were awakened by five masked men carrying guns. The men, who were speaking in Spanish, asked for money. They took the two adults to another bedroom and tied their hands and feet with shoelaces. The men took cash, a bracelet, a rosary, and a watch, among other items.

Glenwhite Drive (Counts 7 and 8). In the early morning of March 29, 2004, several masked men invaded a home on Glenwhite Drive. One of the residents had arrived home from a nightclub and was preparing to go to bed when several men entered his room in the basement of the house. The men pointed a gun at him and told him to get on the floor. They tied the resident’s hands behind his back with an electrical cord and took $300 from his pocket. Other residents were also tied up and moved to the basement, and the home invaders then ransacked the house. The men took $4,000 from under a mattress in one of the bedrooms. They also took a truck that was parked outside the house. According to a responding police officer, the victims described the suspects as five Spanish-speaking males armed with semiautomatic pistols.

Sandune Drive (Counts 9 and 10). On April 9, 2004, six individuals shared a house on Sandune Drive. One of the residents fell asleep on the living room sofa; he awoke to find a gun pressed against his head. The resident saw that the men in the room wore masks, but he was not sure how many there were as he was placed face down on the floor. The men, who were speaking in Spanish, bound the resident with tape and took $2,000 from his pocket. One of the gunmen guarded the first victim while the others went upstairs and robbed the other occupants. The assailants also took a truck parked outside the house. Before they left, one of the gunmen shot the first victim in the leg.

Skyview Lane and Shadowood Road (Counts 12 through 16). In the early morning of April 18, 2004, masked gunmen broke into a home on Skyview Lane. The men tied up the residents, two children, their mother, and her husband, with shoelaces. Some of the intruders spoke in English and others in Spanish. The husband recalled that four men initially entered the home, but that more arrived later. The [661]*661intruders took credit cards, gold, chains, and $2,600, among other items. After the robbery, the family’s GMC Jimmy truck was missing.

The men knew the mother’s name, and they threatened to kill her children if she did not give them the money. One of the intruders pulled down her panties and touched her breasts, her body, and her legs. They then asked her where her sister lived. The men informed her that she would take them to her sister’s house, which was located in the same mobile home park community. After she was untied and allowed to redress, four men took her to their car, and others remained behind with her two children and her husband.

The gunmen drove to the house on Shadowood Road where the mother’s sister resided, and they directed her to knock on the door. When her brother-in-law opened the door, the gunmen forced their way inside. They again tied up the mother, along with her sister, her brother-in-law, and her nephew. The intruders took a consulate identification card, a watch, a bracelet, and $200 from the sister, among other items. After one of the men tortured the brother-in-law with a heated knife and threatened to cut off his son’s fingers, he disclosed that he kept some cash in a shoe. The intruders took the money and left.

Appian Way (Counts 18 and 19). After the robbery at Shadowood Road, the residents of that home moved to a house on Appian Way. On April 27, 2004, the family was asleep when the husband heard someone hit the door. The husband grabbed a gun, ran outside, and shot twice. The individuals outside, who had been trying to knock the door down with a metal bar, ran away.

Davenport Park Lane (Counts 22 and 23). In the early morning of April 30, 2004, a resident of a home on Davenport Park Lane awoke to find a masked gunman in his bedroom. The resident snatched at the gunman’s weapon. The intruder fired approximately ten times, and five bullets hit the resident. The resident’s daughter reported that two other men had been in her bedroom. The men left the house without taking anything.

The investigation and trial. Also during the early morning hours of April 30, 2004, a Gwinnett County resident whose home was a short distance from the home invasion on Davenport Park Lane noticed a car with an “after-market exhaust” repeatedly driving through the neighborhood. Police responded to the resident’s report of a suspicious vehicle, stopped the car, and placed the occupant, Jaime Carrera-Carmago, under arrest for driving without a driver’s license.

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Related

Cisneros v. State
792 S.E.2d 326 (Supreme Court of Georgia, 2016)
Andrea Sneiderman v. State
Court of Appeals of Georgia, 2016
Sneiderman v. State
784 S.E.2d 18 (Court of Appeals of Georgia, 2016)

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Bluebook (online)
780 S.E.2d 360, 334 Ga. App. 659, 2015 WL 7269004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cisneros-v-the-state-gactapp-2015.