Francisco Palencia v. State

• Court: Court of Appeals of Georgia
• Decided: March 22, 2021
• Docket: A21A0163
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER and COLVIN, JJ.

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March 22, 2021

In the Court of Appeals of Georgia A21A0163. PALENCIA v. THE STATE.

COLVIN, Judge.

On appeal from his conviction for crimes committed during a home invasion,

including burglary, kidnapping with bodily injury, aggravated assault, rape,

aggravated sodomy, and cruelty to children, Francisco Palencia argues that there was

a fatal variance between the allegations and the proof and that the trial court erred in

its admission of evidence subject to the rape shield law and in its charge to the jury.

Palencia also asserts that trial counsel was ineffective. We find no reversible error and

affirm.

“On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only whether, after viewing the evidence in the light most favorable to the

prosecution, “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.

S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the record shows that in May 2017, Jose Carranza-Castro, who was

serving time in federal prison, hired Palencia and Josue Ramirez-Aguilar to beat and

disfigure Carranza-Castro’s ex-girlfriend, with whom he had a child. On May 8, 2017,

Palencia and Ramirez-Aguilar, accompanied by two women, knocked on the victim’s

door and, when she refused to admit them, broke one of her apartment windows.

When the victim called police, the burglars fled. When the same group returned to the

victim’s apartment on May 12, 2017, they broke in and stole shoes, clothing,

electronics, and the victim’s puppy. After attempting to track the victim as she

returned home from work, the men reentered the apartment to lie in wait for her while

the women waited outside.

When the victim entered her apartment with her two children, Palencia and

Ramirez-Aguilar threw her to the floor, beat her, tased her, and dragged her into the

kitchen, where Ramirez-Aguilar threw boiling water on her in front of the two

2 children present. The hot water caused second-degree burns and blistering. When the

victim retreated to her bedroom, Palencia followed her and demanded that she take

off her dress and give him oral sex. After the victim complied, Palencia ordered her

to lie down and then raped her. The men left soon afterward. Police responded to the

victim’s 911 call and took her to a hospital, where an exam did not produce DNA

evidence of the rape.

Palencia was apprehended and charged with attempted first-degree burglary

(Count 1), two counts of first-degree burglary (Counts 2 and 3), kidnapping (Count

4), aggravated battery (Count 5), aggravated assault (Count 6), aggravated sodomy

(Count 7), rape (Count 8), and two counts of first-degree cruelty to children (Counts

9 and 10).1 A jury found him guilty of all these with the exception of the second

cruelty count, which it reduced to third-degree cruelty. Palencia was sentenced to 111

years plus life in prison. His motion for new trial was denied, and this appeal

followed.

1. Palencia first argues that there were fatal variances between the allegations

and proof of Counts 3 (first-degree burglary) and 6 (aggravated assault). We disagree.

1 Carranza-Castro, Ramirez-Aguilar, and the two women were charged as co- defendants. Ramirez-Aguilar pled guilty to all the charges.

3 Under Georgia law, the “true inquiry” concerning a variance “is not whether

there has been a variance in proof, but whether there has been such a variance as to

affect the substantial rights of the accused.” (Citation and punctuation omitted.)

Wilhite v. State, 337 Ga. App. 324, 329 (3) (787 SE2d 293) (2016).

[T]he allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and . . . the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance “fatal.”

(Citation and punctuation omitted.) Id.

Here, Count 3 alleged that Palencia “remain[ed]” in the victim’s “dwelling

house . . . unlawfully without authority and with the intent to commit” the felony of

aggravated battery, while Count 6 alleged that he assaulted the victim by

“brandishing” a taser at her. The evidence at trial was that Palencia entered and

remained in the victim’s house without authorization, and also that he actually tased

the victim. As this Court has repeatedly held in such cases, the variances between the

allegations and the proof were not fatal to Palencia’s conviction because the

indictments put him on sufficient notice of the charges against him. See Rubaldino

v. State, 271 Ga. App. 726, 728 (1) (611 SE2d 68) (2005) (no fatal variance between

4 allegation that defendant committed burglary when he entered the victim’s house

without permission and proof that he entered the house with permission but the

victim’s bedroom without permission); In the Interest of J. A. C., 291 Ga. App. 728,

730 (2) (662 SE2d 811) (2008) (no fatal variance between allegation that defendant

assaulted victim by hitting him with a baton and proof that he “merely advanced” on

him); Quiroz v. State, 291 Ga. App. 423, 425 (1) (662 SE2d 235) (2008) (no fatal

variance between indictment alleging that defendant held knife to victim’s neck and

proof that defendant only pointed it at him).

2. Palencia also argues that the trial court plainly erred when it authorized the

admission of the State’s evidence that the rape kit exam showed signs of male DNA,

but not Palencia’s, because she had voluntary intercourse the day before the attack

with a different man. We agree that the trial court erred when it admitted the

evidence, but we conclude that a new trial is not warranted.

In 2019, the Supreme Court of Georgia noted that unlike Federal Rule of

Evidence 412, OCGA 24-4-412 (a) does not exempt evidence offered by the State

from its prohibition against the admission of “evidence relating to the past sexual

behavior of the complaining witness[.]” OCGA § 24-4-412 (a), cited in White v. State,

305 Ga. 111, 115-117 (1) (823 SE2d 794) (2019). Thus “a defendant is authorized to

5 invoke Georgia’s Rape Shield law in order to prohibit the admission of evidence of

a witness’s past sexual behavior offered by the State.” (Emphasis supplied.) Id. at 118

(1). This trial court therefore erred when it admitted testimony concerning this

victim’s sexual behavior into evidence. See id. at 119 (3). But we must also consider

whether this assumed error could amount to “plain error,” as follows:

First, there must be an error or defect . . . that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted; emphasis supplied.) State v. Kelly, 290 Ga. 29, 33

(2) (a) (718 SE2d 232) (2011). Although we cannot agree with the State that Palencia

affirmatively waived his claim of error, Palencia cannot show that the trial court’s

error affected his substantial rights.

At the time of this trial, in October 2016, some Court of Appeals authority held

that evidence of a complaining witness’s past sexual behavior was admissible under

6 a so-called “relevance” exception to the Rape Shield Statute. See, e.g., Bill v. State,

341 Ga. App. 340, 341-342 (1) (a) (799 SE2d 28) (2017) (overruled by White, supra);

Orengo v. State, 339 Ga. App. 117, 128 (10) (793 SE2d 466) (2016) (same); and

other cases following Demetrios v. State, 246 Ga. App. 506, 514 (7) (c) (541 SE2d

83) (2000). As our Supreme Court pointed out in White, however, an older line of

authority had “properly recognized that, by its terms, [the] Rape Shield Statute

applied to exclude evidence offered by the State.” (Emphasis supplied.) White, 306

Ga. at 120 (3), citing Johnson v. State, 146 Ga. App. 277, 280 (2) (246 SE2d 363)

(1978) (“there is no method by which the [S]tate can properly introduce the

proscribed evidence” under the Rape Shield Statute), and Herndon v. State, 232 Ga.

App. 129, 132 (2) (499 SE2d 918) (1998) (trial court erred in allowing State to

introduce evidence at trial that was inadmissible under the Rape Shield Statute).

When this trial court followed the newer and incorrect line of cases in 2016, it

committed “clear or obvious” error. White, 305 Ga. at 123 (3) (finding such error as

to a 2014 trial).

We cannot conclude, however, that this error likely affected the outcome of this

trial. Evidence that the victim had sex with another man shortly before the attack at

issue could only benefit Palencia by undermining the victim’s character. Further,

7 Ramirez-Aguilar, who pled guilty to the rape, admitted to this jury that he was the

person who threw water on the victim and that the two men acted in concert in

assaulting the victim in front of her children.2 Under these circumstances, the

admission of evidence as to the victim’s sexual encounter with another man on the

day before the attack was not likely to affect the outcome of these proceedings or

affect Palencia’s substantial rights. Thus Palencia cannot show that the trial court

committed plain error in admitting that evidence. See White, 305 Ga. at 123 (3) (when

State’s references to a victim’s prior sexual behavior and expert testimony that a

victim of child molestation was more likely to molest others “were minimal,” the

defendant could not show that the admission of the evidence likely affected the

outcome).

3. Palencia also asserts that the trial court committed plain error when it (a)

failed to charge the jury on the necessity for corroboration of an accomplice’s

testimony and (b) charged the jury on aggravated assault and burglary. We disagree.

(a) Palencia cites Stanbury v. State, 299 Ga. 125 (786 SE2d 672) (2016), for

the proposition that a trial court’s failure to charge the jury on the necessity for

2 As the prosecutor stated on redirect examination of Ramirez-Aguilar, “[N]ever in a million years would I dismiss the rape count as it pertains to you even if you were just a lookout[.]”

8 corroboration of an accomplice’s testimony may be plain error. See id. at 130-131 (2),

citing OCGA § 24-14-8 (in “felony cases where the only witness is an accomplice,

the testimony of a single witness” is “[in]sufficient to establish a fact.”). Stanbury is

not on point, however, because this victim survived the attack and testified at trial

that a man matching Palencia’s description raped her. Because the victim was a

competent witness as to her own rape, Ramirez-Aguilar was not the only witness to

it, and no corroboration of the victim’s testimony was necessary. See Glaze v. State,

317 Ga. App. 679, 681-682 (1) (732 SE2d 771) (2012) (given the absence of any

corroboration requirement in the rape statute, a victim’s testimony that she was raped

by someone matching the defendant’s description was sufficient to sustain the rape

conviction); see also Baker v. State, 245 Ga. 657, 665-666 (5) (266 SE2d 477) (1980)

(noting the General Assembly’s 1978 removal of the corroboration requirement from

OCGA § 16-6-1).

(b) (i) Palencia asserts that the trial court erred when it charged the jury that

aggravated assault could be committed by either threatening or accomplishing an

assault with a deadly weapon because the indictment charged him with merely

“brandishing” rather than using a taser. We understand that

9 [i]t is error to charge the jury that a crime may be committed by alternative methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.

(Citation and punctuation omitted.) Dudley v. State, 283 Ga. App. 86, 87 (1) (640

SE2d 677) (2006). As we held in Division 1, however, the variance between the

allegation that Palencia brandished the taser and the proof that he actually tased the

victim was not material and therefore not fatal. The same is true of the charge, which

provided alternative methods of proving aggravated assault but did not mislead the

jury when it did so.

The trial court instructed this jury that a person commits aggravated assault

“when that person assaults another with any object . . . that when used offensively

against a person is likely to or actually does result in serious bodily injury[.]” The

fact that the charge went on to detail the first alternative – that “actual injury to the

alleged victim need not be shown” – does not render the charge erroneous. A charge

citing sections of the assault and aggravated assault statutes “is not error where [only]

a portion of the section[s are] applicable so long as it does not appear that the

10 inapplicable part misled the jury.” (Citation and punctuation omitted.) Dudley, 283

Ga. App. at 88 (1). This jury could not have been misled when the indictment, the

proof, and the charge all asked the jury to determine whether Palencia’s offensive use

of the taser against the victim amounted to aggravated assault. There was no error. Id.

(no error in charging inapplicable portions of the aggravated assault statute when “the

charge cannot reasonably be deemed to have presented the jury with an alternative

basis for finding the appellant guilty of [an] aggravated assault not charged in the

indictment”) (citation omitted).

(ii) For the same reasons, there was no basis for objection to the trial court’s

charge on burglary when the indictment charged Palencia with “remain[ing] within”

the victim’s apartment; when the proof showed that he illegally entered the apartment

and lay in wait for her there; and when the trial court instructed the jury that a person

commits first-degree burglary when, “with the intent to commit a felony therein, that

person enters or remains within the dwelling of another.” (Emphasis supplied.) See

Dudley, 283 Ga. App. at 88 (1); Jackson v. State, 260 Ga. App. 848, 849 (1) (581

SE2d 382) (2003) (no error in omitting word “therein” from burglary charge

concerning entering or remaining in a dwelling with intent to commit a felony when

11 the charge tracked the statute and when the jury was charged on intent such that it

“could not have been confused or misled”).

4. Palencia also argues that trial counsel was ineffective when he failed to

challenge the validity of the search warrant issued as to the victim’s apartment. We

disagree.

To show ineffective assistance of counsel, a defendant must show that

counsel’s performance was deficient and that the deficient performance prejudiced

the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing

Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). As to

deficient performance, “every effort must be made to eliminate the distorting effects

of hindsight,” and the trial court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” (Citation

and punctuation omitted.) White v. State, 265 Ga. 22, 22 (2) (453 SE2d 6) (1995). As

to prejudice, a defendant need only show “a reasonable probability of a different

outcome” due to trial counsel’s deficient performance. (Punctuation and footnote

omitted.) Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008).

More specifically, and as the Supreme Court of Georgia has held:

12 [A] magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate’s decisions in this case is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrants. A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.

(Citations and punctuation omitted.) Prince v. State, 295 Ga. 788, 792 (2) (a) (764

SE2d 362) (2014).

Although Palencia asserts that the search warrant was not sufficiently specific

in that it failed to identify the victim’s apartment number, the affidavit attached to the

warrant specified that number and also added that “apartment [#B] is on the right side

of the house.” Because a prudent officer could locate this apartment “with reasonable

certainty” based on the entirety of the warrant, including the supporting affidavit, the

warrant was adequate. State v. Hicks, 269 Ga. App. 741, 742-743 (605 SE2d 34)

(2004) (affirming validity of search pursuant to a warrant despite a scrivener’s error

13 on the affidavit). Further, and despite Palencia’s attack on the victim’s credibility, we

are not authorized to contradict the magistrate’s implicit determination that her

account was sufficiently credible to establish probable cause for the search. See

Prince, 295 Ga. at 792 (2) (a) (evidence including witness accounts was sufficient to

establish probable cause to search defendant’s house).

For these reasons, a motion to suppress the search warrant based on lack of

specificity or probable cause “would have failed, and this ineffective assistance of

counsel claim also fails.” (Citation omitted.) Prince, 295 Ga. at 792 (2) (a).

Judgment affirmed. Dillard, P. J., and Mercier, J., concur.