FOURTH DIVISION DILLARD, P. J., RICKMAN and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
March 15, 2024
In the Court of Appeals of Georgia A23A1752. SOLIS v. THE STATE.
PIPKIN, Judge.
Appellant Hector Rene Solis was convicted of six counts of sexual battery, see
OCGA § 16-6-22.1 (b), and one count of Cruelty to Children in the First Degree, see
OCGA § 16-5-70 (b). On appeal, Solis contends that his trial was infected with
structural error, that trial counsel was ineffective, and that he is entitled to a new trial
as a result of juror misconduct. While we agree that Solis is entitled to a new trial on
the charge of Cruelty to Children in the First Degree as a consequence of juror
misconduct, we affirm in all other respects. Accordingly, we affirm in part and reverse
in part.
1. When viewed in a light most favorable to the verdicts, see Jackson v. Virginia,
443 U.S. 307, 319 (III) (99 SCt 2781, 61 LE2d 560) (1979), the evidence adduced at trial established as follows. The victim, D. S., was born in July 2004, and Solis is her
father. D. S., who was 17 years old at the time of trial, testified that she had a good
relationship with her father “until he would drink or take his medicine or forget to
take his medicine.” D. S. testified that Solis began sexually abusing her around the
time she was four-years old. The victim explained that, in her younger years, she and
Solis bathed together; when they did, Solis made her touch his genitals. D. S. also
described incidents in which Solis rubbed his penis “back and forth on [her] butt.”
Later, when she was “going through puberty,” Solis would “pull” her pubic
hair. D. S. recounted that, around the time she was 13-years old, Solis forcefully
shaved her pubic area and then put his mouth on her genitalia. Around the time she
turned the age of 15, D. S. started showering alone, but this did not deter Solis;
according to D. S., he would come into the shower and “touch [her] everywhere,”
including her “private parts” and breasts.1 D. S. testified that, around this same time,
Solis forced her to touch his genitals after he had showered because, he had said, “he
had something on it, like a bump, and [he] wanted [her] to feel it.” D. S. lacked any
nearby relatives and had few friends, so it was not until late 2020 that D. S. disclosed
1 D. S. explained that her “private parts” meant her “vagina.” 2 the abuse, first to her boyfriend and then to her step-mother. When asked how the
incidents made her feel, D. S. testified that she “didn’t like it because [she] knew it
wasn’t right[.]”
In addition to the allegations made by D. S., the jury also heard from K. R., who,
as a child, lived in close proximity to the Solis residence. K. R. testified that, in the
summer of 2010 -- when she was nine-years old -- she regularly visited the Solis
household to spend time with D. S. K. R. recounted that, on what would be her final
visit to the house, Solis offered to wash her swim suit and instructed her to get into a
bath with D. S. According to K. R., Solis came into the bathroom with a camera,
started taking pictures, and then put his hands “in her private zone,” touching the top
of her vagina. K. R. told the jury that she grabbed a towel and tried to escape from the
house but that Solis blocked her path; D. S. came downstairs and helped K. R. leave
the house.
Solis testified in his own defense; he denied the allegations and testified that,
at the time of D. S.’s outcry, she was unhappy because Solis had “put some
restrictions on [her]” as a result of her poor grades. Following a four-day trial, the jury
returned guilty verdicts on the charges of sexual battery and cruelty to children.
3 Following the verdict, the jury was dismissed; however, the trial court recalled the
jury after discovering an error on the verdict form and instructed the jury to re-
deliberate on the charge of Cruelty to Children in the First Degree. The jury affirmed
its verdict, and Solis was sentenced. Solis timely filed a motion for new trial; after
being appointed new counsel, he amended that motion. Following a hearing, the trial
court denied the motion for new trial as amended. Solis now appeals, raising a number
of enumerations. We address them in turn.
2. Solis’s first two enumerations concern the availability of hearing aids during
trial.
In a pre-trial motion styled “Motion to Obtain Devices to Aid in Hearing,”
defense counsel asserted that Solis “does not hear well” and that, in order for the
defendant “to have meaningful conversations” with counsel, he was “in need of a
hearing aid.” A subsequent pre-trial hearing reflects that, approximately a month
before trial,2 the State provided defense counsel with a set of hearing aids for Solis. On
the first day of trial, however, Solis was wearing only one of the hearing aids. As to this
2 The record reflects that the hearing aids were provided to trial counsel on Solis’s behalf no later than July 22, 2021 -- the date of the pre-trial hearing -- and that trial began on August 16, 2021. 4 issue, the transcript reveals the following exchange in open court in the presence of
trial counsel:
The Court: All right. Senor Solis, you’re not wearing your hearing aids. The Defendant: I can hear what they say. The Court: Okay. .... The Court: You have one? The Defendant: I can hear -- I have one. Yes, sir. [Spanish-language] Interpreter: -- he has his right hearing aid on. The Court: Okay. Are you satisfied with that? The Defendant: Yeah, it’ll be okay. The Court: It’ll be okay? The Defendant: Yes. Yes. The Court. All right. Thank you. The trial commenced shortly thereafter.
(a) On appeal, Solis asserts that he “is hearing impaired and requires hearing
aids” but that “[h]e was denied access to two working hearing aids during his trial.”
According to Solis, this amounts to a “structural error.” This argument is waived.
As we have explained, a structural error “is a defect affecting the framework
within which the trial proceeds, rather than simply an error in the trial process itself.”
5 (Citation and punctuation omitted.) Hunt v. State, 268 Ga. App. 568, 570–71 (1) (602
SE2d 312) (2004). While claims of structural error are not subject to harmless-error
analysis, see id., such claims are nevertheless still “capable of forfeiture.” (Citation
and punctuation omitted.) Pyatt v. State, 298 Ga. 742, 750 (5) (784 SE2d 759) (2016).
Here, as he acknowledges on appeal, Solis did not object to being tried with only one
hearing aid, and, thus, he failed to preserve this enumeration for our review. See, e.g.,
Payne v. State, 314 Ga. 322, 328 (2) (877 SE2d 202) (2022); Pyatt, 298 Ga. at 750.
Instead, we consider this claim through the lens of Solis’s ineffective assistance of
counsel claim. See Alexander v. State, 313 Ga. 521, 521 (870 SE2d 729) (2022).
(b) Solis contends on appeal, as he did below that “[t]rial counsel acted
ineffectively when he failed to ensure that [Solis] was able to effectively communicate
and participate in the proceedings.” To succeed on his claim, Solis must demonstrate
both that his trial counsel’s performance was deficient and that he suffered prejudice
as a result of counsel’s deficient performance. See Strickland v. Washington, 466 U.
S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “To prove deficient
performance, [Solis] must show that his lawyer performed at trial in an objectively
unreasonable way considering all the circumstances and in the light of prevailing
6 professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). As
to prejudice, Solis must establish that “the deficient performance prejudiced the
defense, which requires showing that counsel’s errors were so serious that they likely
affected the outcome of the trial.” Jones v. State, 305 Ga. 750, 755 (4) (827 SE2d 879)
(2019). “[S]atisfaction of this test is a difficult endeavor. Simply because a defendant
has shown that his trial counsel performed deficiently does not lead to an automatic
conclusion that he was prejudiced by counsel’s deficient performance.” Davis v.
State, 306 Ga. 140, 144 (3) (829 SE2d 321) (2019). And “[i]f an appellant is unable to
satisfy one prong of the Strickland test, it is not incumbent upon [the reviewing court]
to examine the other prong.” (Citation and punctuation omitted.) Id. at 143 (3).
As an initial matter, Solis has failed to articulate the exact manner in which trial
counsel performed deficiently. In his amended motion for new trial and accompanying
brief, Solis asserted that trial counsel “failed to provide [Solis] with properly charged
hearing aids during the course of trial” but then, at the subsequent hearing, argued
that trial counsel “should have advocated” for Solis and “should’ve made sure that
[Solis] had both of [the hearing aids] working.” On appeal, Solis argues that “trial
counsel deprived Appellant of his hearing aids” and that trial counsel only supplied
7 one “properly charged” hearing aid. The record, however, does not support any of
these contentions.
There is no merit to the claim that trial counsel was ineffective for failing to
advocate for Solis to have a second hearing aid at trial. While it is true that trial
counsel filed a motion to secure hearing aids for his client, trial counsel also testified
at the hearing on the motion for new trial that Solis did not have the benefit of hearing
aids while he was awaiting trial and that Solis was still able to understand and
communicate during this time. Further, it is undisputed that Solis was wearing one of
those hearing aids at the start of the trial and, importantly, that Solis twice told the trial
court “I can hear” at the start of trial. In light of these circumstances, we cannot say
that trial counsel’s apparent decision to allow his client to proceed to trial while
wearing only one hearing aid was so patently unreasonable that no reasonable attorney
would have made a similar decision. See Middlebrooks v. State, 310 Ga. 748, 752 (3)
(854 SE2d 503) (2021) (recognizing that “to establish that trial counsel was deficient,
the appellant has to show that ‘no reasonable attorney’ would have taken the same
course of action as trial counsel” (citation and punctuation omitted)).
8 While Solis also claims that trial counsel “deprived” him of his hearing aids and
that he “was only wearing his right hearing aid as that was the only one trial counsel
had provided that was properly charged,” there is no evidence in the record to
support these assertions.3 At best, the record shows only that the hearing aids and
charger were initially given to trial counsel and that, at various unspecified times, trial
counsel attempted to charge the hearing aids for Solis; there is no accounting for who
was responsible for maintaining and managing Solis’s hearing aids or why Solis had
only one hearing aid at the start of trial. Without evidence to support his claims, Solis
cannot overcome the strong presumption that trial counsel performed reasonably. See
Thornton v. State, 307 Ga. 121, 126 (3) (834 SE2d 814) (2019) (“[T]he law recognizes
a ‘strong presumption’ that counsel performed reasonably, and Appellant bears the
burden of overcoming this presumption.” (citation and punctuation omitted)).
Finally, even if trial counsel had performed deficiently, there is no evidence of
prejudice. As an initial matter, Solis did not testify at the hearing on his motion for
3 The claim on appeal that “[t]rial counsel deprived [Solis] of his hearing aids” lacks any citation to the record. Similarly, the claim that trial counsel failed to charge the hearing aids is supported by a citation to the record that makes no reference to a hearing aid being charged; in fact, it is to that portion of the transcript, which is quoted above, in which Solis discusses his hearing aid with the trial court. 9 new trial; it is unclear from the trial record whether Solis was able to wear both
hearing aids at some points during trial,4 and, if not, there is no evidence addressing
what benefit, if any, that second hearing aid would have provided. Further, the trial
transcript reflects that, when asked by the trial court during trial whether Solis had
understood the proceedings, the Spanish-language interpreter responded as follows:
“Yes. He has understood everything that’s come in through the entire process of trial.
There’s been a couple of times that he’s requested clarification on some terms. That
has been clarified through interpretation. There’s been no communication or language
issues.” Similarly, trial counsel testified at the hearing on the motion for new trial that
the “interpreter constantly let [him] know that [Solis] knew and heard what was going
on.” The trial court plainly credited this evidence.
Although it is true there were various instances in which Solis, while testifying,
asked the respective speaker for clarification -- replying either “huh” or “say that
again” -- these responses were sporadic and Solis’s ultimate answers were responsive
to the questions asked; further, the jury had already been made aware that Solis
suffered from hearing loss. Again, in light of the record and evidence before us, we
4 At various points during trial, both Solis and trial counsel appear to reference Solis wearing both hearing aids. 10 agree with the trial court that Solis has failed “to demonstrate a reasonable probability,
sufficient to undermine confidence in the outcome, that, but for counsel’s alleged
unprofessional errors, the result of the proceeding would have been different.”
Emmons v. Bryant, 312 Ga. 711, 717 (2) (864 SE2d 1) (2021).
3. Solis also asserts several enumerations concerning his conviction for Cruelty
to Children in the First Degree. Specifically, he challenges the fact that the jury was
recalled after it was dismissed and, further, claims that he is entitled to a new trial as
a consequence of juror misconduct. We address both below.5
The indictment here charged Solis with Cruelty to Children in the First Degree
on the basis that he “did maliciously cause [D. S.], a child under the age of eighteen
(18) years, cruel and excessive mental pain by performing sexual acts on [her].” While
there is no question that this offense was addressed at Solis’s trial and that the jury
was properly charged on Cruelty to Children in the First Degree, the verdict form
supplied to the jury erroneously listed the charge as “Cruelty to Children in the Third
Degree”; the discrepancy was not discovered until after the jury had announced its
guilty verdict and had been permitted to leave the courtroom. After discovering that
5 Solis also asserts a claim of ineffective assistance of counsel, but, given our resolution of his juror-misconduct claim, we need not reach it. 11 the jurors were still, as a whole, collected together in the hallway right outside the
courtroom, the trial court recalled them.6 Thereafter, the trial court advised the jury
of the mistake, and the jury was sent back to the jury room to reconsider its verdict.
During this second round of deliberations, the jury asked two questions. The
jury first asked about “the definitions of the degrees,” to which the trial court
responded in writing, “you were charged only on first degree cruelty[,] and I must ask
if that is your decision.” The jury then asked for the “textbook” definition of Cruelty
to Children in the “first degree, second degree, [and] third degree,” to which the trial
court responded, “you have only been charged on First Degree, and you must decide
guilty or not guilty on that charge.” Apparently unsatisfied with the trial court’s
6 The trial transcript reflects that, when the trial court asked aloud if the jurors were “still here,” an “unidentified speaker” responded, “they’re outside . . . all of them are here, all 12 of them.” Later, one of the prosecuting attorneys confirmed these details. At the hearing on the motion for new trial, the attorney testified that, after the trial, he went into the hallway right outside of the courtroom to speak with the jurors and encountered the entirety of the jury as they “came around through the back hallway.” The attorney explained that, while jurors will usually go separate ways as they leave the courtroom, “[i]n this case, all of them came over, I guess, just kind of a mob mentality. They all came.” It was while he was there -- briefly re-introducing himself -- when someone “came running out of Courtroom 3 into the hall . . . and said there was some issue, that the jurors needed to stay here.” The jurors were thereafter brought back into the courtroom. 12 responses -- and despite repeated, express instructions to the contrary7 -- one of the
jurors used her cellular telephone to conduct an online search regarding the various
classifications of the offense of cruelty to children; that information was then shared
with and discussed by the other jurors. Following their second round of deliberations,
the jury returned a verdict finding Solis guilty of First Degree Cruelty to Children as
charged.
Solis argues on appeal, like he did below, that he is entitled to a new trial
because the trial court erroneously recalled the jury after they had been dismissed and,
further, because the jurors engaged in misconduct during the second round of
deliberations. While we conclude that the trial court properly recalled the jury to re-
deliberate, we agree with Solis that he is entitled to a new trial on the count of Cruelty
to Children in the First Degree as a result of the juror misconduct.
7 During the jury charge, the jurors were advised that they were “not permitted to conduct any research about this case, including persons, places or legal concepts mentioned during the trial. These rules not only apply to in-person communication but also communication or research using cell phones, text messaging, website, blogs, social media, computers, anything.” This charge mirrored an earlier instruction by the trial court to the jurors that they were not to “go out and do any investigation on your own, any research on your own, Google something, look up any legal concepts, [or] get advice from your cousin, the lawyer.” 13 (a) We first address whether the jury was properly recalled.8 As our Supreme
Court has explained, “[w]hen a verdict is rendered on a crime that was not charged
to the jury, that verdict is illegal.”9 Prater v. State, 273 Ga. 477, 482 (5) (545 SE2d
864) (2001). Under such circumstances, “‘the proper procedure is for the trial court
and counsel to review the verdict prior to its publication in open court,’ and, when an
improper verdict is rendered, the court should return the jury for further
deliberations.” (Punctuation omitted.) Washington v. State, 333 Ga. App. 234, 247 (1)
(775 SE2d 719) (2015) (quoting State v. Freeman, 264 Ga. 276, 278 (444 SE2d 80)
8 We address this issue as a threshold matter because longstanding precedent reflects that, “[i]f the trial court receives a verdict of guilty on a crime that was neither charged nor was a lesser included offense of a crime charged, then the verdict has the legal effect of an acquittal.” Stubbs v. State, 220 Ga. App. 106, 107 (1) (469 SE2d 229) (1996). 9 But see OCGA § 17-9-2 (“Verdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.”). Given that Solis was only ever charged with Cruelty to Children in the First Degree, that this was the sole version of the offense on which the jury was instructed, and that the mislabeled verdict form was supplied by the trial court, we question whether OCGA § 17-9-2 would have authorized the trial court to reasonably construe the verdict to mean that the jury found Solis guilty as charged. See Rolle v. State, 177 Ga. App. 79 (338 SE2d 519) (1985) (relying on OCGA § 17-9-2 to conclude that there was no error “in treating the jury’s verdict of guilty of ‘breaking and entering’ as a finding of guilt on the burglary charge”). However, no one has raised that issue -- and the trial court did not take that course of action -- and, thus, we need not address it. 14 (1994)). Here, given the discrepancy in the jury charge and the verdict form, the trial
court was authorized to instruct the jury to re-deliberate and consider the offense of
First Degree Cruelty to Children.
Solis argues, however, that this procedure is prohibited under OCGA § 17-9-40,
which states that “[a] verdict may be amended in mere matter of form after the jury
have dispersed; but, after it has been received, recorded, and the jury dispersed, it may
not be amended in matter of substance, either by what the jurors say they intended to
find or otherwise.”10 According to Solis, the jury in this case was “dispersed” and,
thus, they were not entitled to amend their verdict. We disagree. While the jurors had
been dismissed from the courtroom, the undisputed evidence here shows that they
remained together as a collective and only made it to the hallway outside the
courtroom before being recalled. During that time -- which was mere minutes -- the
jurors encountered only one of the prosecuting attorneys, who did nothing more than
reintroduce himself and re-learn a juror’s name. Given the circumstances here, we
10 Solis also asserts that we should review this case through the lens of Dietz v. Bouldin, 579 U. S. 40 (136 SCt 1885, 195 LE2d 161) (2016); however, Dietz was decided under federal law, and, further, the Supreme Court of the United States expressly declined to decide whether that decision applies in criminal cases. Id. at 51 (II) (B). See also Wallace v. State, 303 Ga. 34, 38 (2) (810 SE2d 93) (2018) (referencing Dietz). 15 conclude that the jury had not yet “dispersed.” See Booth v. State, 311 Ga. 374, 377
(2) (858 SE2d 39) (2021) (OCGA § 17-9-40 did not prohibit a jury from being recalled
where the record showed “that after being told that they were ‘dismissed to the jury
room,’ and before being recalled to the courtroom, none of them left the courthouse”
and that, during such time, “[t]he jury remained together as a whole and did not
separate before being asked to deliberate further”).
(b) Solis argued in his motion for new trial that he was entitled to a new trial on
the charge of Cruelty to Children in the First Degree as a consequence of the juror
misconduct. The trial court denied this claim for relief, and we review it for abuse of
discretion. See Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990).
As Georgia courts have explained before, “when a jury is selected and sworn
to try the criminally accused, the law contemplates that no outside influence shall be
brought to bear on the minds of the jury, and that nothing shall occur outside of the
trial which shall disturb their minds in any way.” (Citation and punctuation omitted.)
Edge v. State, 345 Ga. App. 794, 796 (2) (815 SE2d 146) (2018), overruled on other
grounds, Flowers v. State, 307 Ga. 618 (837 SE2d 824) (2020). Indeed,
[a]llowing jurors to decide a case based on “law” provided by a juror during deliberations patently violates a defendant’s Sixth Amendment
16 rights not only to be present at all critical stages of his trial, but also to be tried by a fair and impartial jury. . . . And where, as here, misconduct of a juror or of the jury is shown, the presumption is that the defendant has been injured, and the onus is upon the State to remove this presumption by proper proof. That is, the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. A jury verdict will not be upset solely because of juror misconduct, however, unless such conduct was so prejudicial that the verdict must be deemed inherently lacking in due process. Put another way, a new trial will not be granted unless there is a reasonable possibility that the improper information collected by jurors contributed to the conviction. (Punctuation and footnotes omitted.) Chambers v. State, 321 Ga. App. 512, 518–519
(1) (739 SE2d 513) (2013) (physical precedent only).
Here, there is no dispute that, during the second round of deliberations, at least
one juror used her cellular telephone to conduct internet research concerning the
various classifications of the offense of cruelty to children and, further, that the fruits
of this research were shared amongst the jurors and used as part of their deliberations;
thus, it became the State’s burden to prove beyond a reasonable doubt that no harm had
occurred. In denying Solis’s motion for new trial, the trial court reasoned that there
was no harm because the elements of Cruelty to Children in the Third Degree vastly
differ from those involved in Cruelty to Children in the First Degree and, thus, that
any research into Cruelty to Children in the Third Degree would have been immaterial
to the jury’s ultimate verdict. This conclusion misses the mark.
17 The evidence presented below does not establish that the jury’s internet
research was limited solely to Cruelty to Children in the Third Degree; instead, the
undisputed evidence shows that the jury was researching both offenses to determine
the differences between them and that the juror “was confused about the verbiage in
the charge.” (Emphasis supplied.) Thus, the juror’s research here was directly related
to the sole charge on which the jurors were re-deliberating. More importantly, the
State presented no evidence on the juror misconduct aside from what the juror was
researching. Indeed, the sole juror who testified at the hearing on the motion for new
trial could only vaguely report that the juror in question “was unsure of the meaning
of one of the charges . . . so she Googled the meaning of what was the charge. I don’t
remember what it was. . . . . But what I remember that -- after that they Googled that
we discuss in the group and then we do the decision.” (As in original.) Notably, there
is no evidence as to what information the jurors actually learned or how this
information impacted their deliberation.
As we have explained before, “we are not suggesting that in every case where
juror misconduct is alleged, the State is under an obligation to call each individual
juror,” Edge, 345 Ga. App. at 798 (2), but the State was required to “overcome, by
18 proof beyond a reasonable doubt, the presumption of prejudice that arose in this
case.” Chambers, 321 Ga. App. at 520. The State failed in this regard, and thus, Solis
is entitled to a new trial as to the charge of Cruelty to Children in the First Degree.11
See Edge, 345 Ga. App. at 796-798 (2) (reversal of denial of motion for new trial where
jurors conducted independent investigation, and State failed to present evidence from
the relevant jurors concerning that investigation); Chambers, 321 Ga. App. at 515-521
(1) (defendant entitled to new trial after juror conducted legal research on affirmative
defense, and State failed to present evidence addressing how extra-judicial research
was used).
Judgment affirmed in part and reversed in part. Rickman, J., concurs. Dillard, P.
J., concurs fully as to Divisions 1, 2 and 3 (a) and in judgment only as to Division 3 (b).
11 While neither party addresses this, the facts, as set forth in Division 1 were sufficient to sustain Solis’s conviction for Cruelty to Children in the First Degree. See Hunt v. State, 336 Ga. App. 821, 824 (1) (a) (783 SE2d 456) (2016). Accordingly, Solis may be retried on the charge. See State v. Heggs, 252 Ga. App. 865, 865-866 (558 SE2d 41) (2001). 19