Lopez v. State

735 S.E.2d 812, 319 Ga. App. 486, 2013 Fulton County D. Rep. 72, 2012 Ga. App. LEXIS 1076
CourtCourt of Appeals of Georgia
DecidedDecember 21, 2012
DocketA12A1680
StatusPublished

This text of 735 S.E.2d 812 (Lopez 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
Lopez v. State, 735 S.E.2d 812, 319 Ga. App. 486, 2013 Fulton County D. Rep. 72, 2012 Ga. App. LEXIS 1076 (Ga. Ct. App. 2012).

Opinion

Adams, Judge.

Raul Lopez was convicted by a jury of aggravated child molestation, two counts of rape and three counts of child molestation.1 He filed a motion for new trial, as amended, which the trial court denied, and then the present appeal. Having considered his claims of error on appeal, we now affirm.

Construed to support the jury’s verdict, as we must on appeal, the evidence presented at trial showed the following facts pertinent to the issues raised here.

The victim, who was almost nine years old at the time of trial, testified first. The victim testified that she was currently living with her mother’s sister in Texas, but that she went to kindergarten and first grade in Georgia. She said she remembered talking to a school counselor and police about Lopez when she was in the first grade, but said she “forgot” what she had talked to them about. Upon further questioning, she said she remembered telling people that Lopez2 “had done some things to [her],” but that “it was a lie because a girl told [her] to say that.” She also said the girl, whose name she could not remember, did not love her family and that was why she told the victim to say the things she said about Lopez.

Cathy Koon, a counselor at B. B. Harris Elementary School in Gwinnett County, testified next. Koon said that she was conducting a “safety lesson” on good touches, bad touches and nasty touches to the victim’s first grade class when the victim spontaneously raised her hand and volunteered that someone had touched her on her “butt” when she was on the school bus. Koon took the victim to her office, and the victim then disclosed that Lopez touched her on her “biscuit.” Koon asked the victim to explain what she meant by her biscuit, and the victim said “down there” and put her hand on the front area of her “private part.” Koon also asked the victim if anything else happened, and the victim said Lopez put his biscuit on her biscuit. Koon gave the victim a male doll and female doll and asked her to demonstrate what [487]*487Lopez did to her; the victim “immediately took the boy doll, placed it on top of the girl doll and then proceeded to move the doll back and forth and say, uh, uh.” The victim told Koon that Lopez’s biscuit would not fit in her biscuit and that he put his hand over her mouth so she would not make any noise.

Koon then contacted the Gwinnett County Department of Family and Children Services (DFACS). Babette Stephens, who at that time was a child protective services investigator with Gwinnett County DFACS, came to the school and spoke with the victim. Stephens said that the victim told her that Lopez would come into her room and they both would undress and get under the covers in bed and that he would rub his biscuit on her biscuit. The victim also told her that her mother would be in the kitchen during this time.

Stephens then contacted the Gwinnett County Police Department Special Victims Unit, and Sergeant D. L. Brewster and Officer Benny McCollough came to the school and did an initial interview with the victim. This interview, in which the victim described what Lopez did to her, was audio recorded and played for the jury at trial. Although the interview was audio only, Sergeant Brewster explained to the jury that male and female “Barbie-type” dolls were used during the interview and the victim used the dolls to demonstrate some of what she was saying, including pointing to the front groin area of both dolls to show where their biscuits were located. He also testified that the victim pointed to her chest to explain what her “chi-chis” were, and that the victim said that Lopez’s penis looked similar to a pencil and was near his stomach.

Additionally, during the interview the victim told the officers that Lopez would take his pants off and her dress off and would place his biscuit on her biscuit. The officers asked the victim whether Lopez placed his biscuit on or in her biscuit and she said that he placed it in her biscuit. The victim also said that sometimes Lopez placed his biscuit in her “butt,” and that he kissed her on her mouth and sometimes put his tongue on her tongue, that he kissed her on her “chi-chis” and that he would sometimes lick and kiss her biscuit.

The victim was then transported to Gwinnett County Sexual Assault Center (GSAC) and examined by Denise Proto, who was qualified as an expert in sexual assault examination. Proto said that, as was her custom, she began the examination by asking the victim why she was there, and the victim responded that Lopez had done something to her. Proto asked the victim to elaborate, and she told Proto that Lopez puts his biscuit in her biscuit. She indicated to Proto that her biscuit referred to her pubic area and said that Lopez’s biscuit did not look like a biscuit and was brown, and that it hurt when Lopez put his biscuit on her biscuit. The victim also told Proto [488]*488that Lopez grabbed her breasts, which she called her “chi-chis,” and wiggled them and that they turned red because he wiggled them “hard,” and that sometimes Lopez put his mouth on her biscuit.

Proto conducted her physical examination of the victim next, and noted that there was generalized redness around the victim’s vagina. She said this redness was consistent with what the victim said Lopez did to her, but also said on cross-examination that the redness could also be attributable to benign causes such as poor hygiene.

Officer McCollough testified that a warrant was then obtained for Lopez’s arrest, and that he was arrested at his home, which was in unincorporated Gwinnett County. However, Officer McCollough said several days later he received a telephone call from the victim’s mother, who told him the victim wanted to speak to him. He talked to the victim on the phone, and she told him she wanted to come to police headquarters so she could tell him she was sorry she had lied to him. The victim came to the station about three days later, and Officer McCollough spoke to her in an interview room and taped that interview on a hidden camera. That recording, in which the victim both recanted and affirmed her previous statements concerning the molestation, was then introduced and played for the jury.

In addition to recanting the allegations she made against Lopez to the police, the victim also sought out Koon and said she needed to apologize because she had lied and that it was really her three-year-old brother who had done those things to her. Likewise, Lopez introduced evidence that employees of the district attorney’s office talked to the victim on the phone while she was living in Texas, and that conversation had also been recorded and was played for the jury. In that conversation, the victim said she lied to Koon and the police because a “girl told her to.”

1. Lopez first argues that the testimony given by Koon, the police officers and Proto improperly bolstered the testimony of the victim. However, the testimony of these witnesses was presented after the victim testified she lied when she said that Lopez committed various sexual acts against her. Thus, the testimony of these witnesses contradicted rather than bolstered the victim’s testimony, and was properly admitted over defense counsel’s vigorous objection.3 Our Supreme Court has “rejected the assertion that a prior inconsistent statement is admissible only if the witness denies making the prior statement, but not if [the witness] simply disputes the truth of the earlier statement. There is no such ‘denial’ requirement under [489]

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Bluebook (online)
735 S.E.2d 812, 319 Ga. App. 486, 2013 Fulton County D. Rep. 72, 2012 Ga. App. LEXIS 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-state-gactapp-2012.