Estrada v. State

738 S.E.2d 344, 319 Ga. App. 762, 2013 Fulton County D. Rep. 327, 2013 WL 541071, 2013 Ga. App. LEXIS 67
CourtCourt of Appeals of Georgia
DecidedFebruary 14, 2013
DocketA12A2475
StatusPublished
Cited by9 cases

This text of 738 S.E.2d 344 (Estrada v. 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
Estrada v. State, 738 S.E.2d 344, 319 Ga. App. 762, 2013 Fulton County D. Rep. 327, 2013 WL 541071, 2013 Ga. App. LEXIS 67 (Ga. Ct. App. 2013).

Opinion

DOYLE, Presiding Judge.

Rodolfo Estrada appeals from the denial of his motion for new trial following his conviction by a jury of aggravated sodomy,* 1 aggravated child molestation,2 and first degree cruelty to children.3 He contends that the trial court erred by (1) admitting child hearsay testimony from the victim, (2) admitting his confession, (3) admitting testimony about the results of a DNA test, and (4) refusing to charge the jury on the mandatory sentence he faced. For the reasons that follow, we affirm.

Construed in favor of the verdict,4 the record shows that six-year-old D. F. and her mother were temporarily living with Estrada, his wife, and their family. One night, Estrada’s wife awoke to strange sounds coming from the foot of their bed, where D. F. slept on an air [763]*763mattress. She saw Estrada look up from D. F.’s mattress and asked him what he was doing. Estrada responded, “It ain’t what you think,” the wife angrily confronted him, and Estrada eventually left the house. The wife asked D. F. what happened, and she said that Estrada had touched her private parts. Shortly thereafter, D. F. disclosed to another family member that Estrada had licked her vagina and touched her anus. Estrada’s wife called the police, and D. F. again disclosed to an officer that Estrada had touched her rear and groin area. D. F. was taken to see a sexual assault nurse examiner, who collected samples from the affected areas, and D. F. later described the abuse to a forensic interviewer. The forensic samples were determined to contain male DNA, but no specific profile could be developed.

Estrada was arrested and charged with six counts based on the abuse, and a jury found him guilty of aggravated sodomy, aggravated child molestation, and cruelty to children.5 The trial court denied his motion for new trial, and this appeal followed.

1. Estrada contends that the trial court erred by admitting hearsay statements made by the victim. We disagree.

Under OCGA § 24-3-16,6 hearsay statements by underage victims of sexual abuse are “admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion. . . . When determining whether an out-of-court statement has sufficient indicia of reliability, a court may consider the following factors, without limitation: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or [764]*764emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. These factors, however, are not to be mechanically applied but considered in a manner best calculated to facilitate the determination of the required degree of trustworthiness. Moreover, even if all factors do not indicate reliability, the trial court does not necessarily abuse its discretion in admitting the statement.7

Here, the trial court held a pre-trial evidentiary hearing which included testimony from each witness who reported outcries from the victim. D. F. was six years old at the time of the outcries, and the outcries to an officer and family member were readily made at home on the night of the abuse. The forensic interview was done by a trained interviewer in a nonthreatening environment. There was no evidence of threats or promises made to D. F, nor of any intoxication or any general incredibility of D. F.’s statements, which were essentially consistent at each telling. Estrada points to some evidence of later recantation as evidence of coaching, but that alone does not require reversal in light of the other evidence supporting the trial court’s findings.8 Further, D. F.

testified as a witness at trial and was subject to cross-examination, thus allowing [Estrada] every opportunity to cross-examine her before the jury regarding the circumstances surrounding [her outcries], and giving the jury the opportunity to judge her demeanor and credibility during [those statements]. . . . This circumstance provided an additional safeguard to [Estrada’s] right of fair trial and provided him full opportunity for confrontation.9

[765]*765Accordingly, we discern no abuse of discretion by the trial court.10

2. Estrada next contends that the trial court erred by finding that his custodial statement was freely and voluntarily made. We disagree.

Under former OCGA § 24-3-50,* 11 “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” “The standard for determining whether or not a confession was voluntary is the preponderance of the evidence standard. The trial court’s decision on this point will not be disturbed on appeal unless there is obvious error.”12

Prior to trial, the trial court held a Jackson-Denno hearing at which Estrada described the circumstances of a confession he made to police after he was arrested. Estrada testified that he felt “trapped” and “threatened,” and that he merely told the interviewing investigator what he thought she wanted to hear. The credibility of this testimony was for the trial court,13 and the record, which contains a videotape of his confession, demonstrates that Estrada was adequately informed of his Miranda rights; that he waived them and had at least twice expressed a desire to tell his story to the investigator; that he was not threatened or made promises by his unarmed interviewer; and that he was not restrained during the interview, which was not unduly lengthy. Based on the record before us, we discern no error in admitting the confession.14

3. Estrada next challenges the trial court’s admission of testimony from a forensic expert that the swab samples taken from the victim contained male DNA. Estrada argues that under Bullcoming v. New Mexico,15

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Bluebook (online)
738 S.E.2d 344, 319 Ga. App. 762, 2013 Fulton County D. Rep. 327, 2013 WL 541071, 2013 Ga. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estrada-v-state-gactapp-2013.