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
January 24, 2024
In the Court of Appeals of Georgia A23A1307. BUENRROSTRO v. THE STATE.
PIPKIN, Judge.
Following a jury trial, Luis Buenrrostro was convicted of two counts of
aggravated child molestation and was sentenced to 25 years to serve in prison followed
by life on probation. Buenrrostro appeals the trial court’s denial of his motion for new
trial, raising three claims of trial court error, numerous claims of ineffective assistance
of trial counsel, and a claim of cumulative error. For the reasons discussed below, we
affirm.
1. Factual Background and Procedural History In November 2021, Buenrrostro was re-indicted1 by a Fulton County grand jury
on six counts of aggravated child molestation against C.R. Counts 1 through 3 of the
indictment were identical to each other and charged Buenrrostro with criminal sexual
acts committed on July 1, 2020. Specifically, Buenrrostro was charged with
“unlawfully commit[ting] an immoral and indecent act to [C.R.], a child under the age
of sixteen (16) years, by placing his mouth on her vagina, with the intent to arouse and
satisfy [the] accused’s sexual desires; said act involving an act of sodomy.” Counts 4
through 6 of the indictment were, again, identical to each other, and charged
Buenrrostro with committing criminal sexual acts on June 1, 2020. These counts
alleged that Buenrrostro “unlawfully commit[ted] an immoral and indecent act to
[C.R.], a child under the age of sixteen (16) years, by placing his penis in her anus,
with the intent to arouse and satisfy [the] accused’s sexual desires; said act involving
an act of sodomy.”
1 As explained in the order denying Buenrrostro’s motion for new trial, Buenrrostro was originally charged with committing two counts of child molestation and one count of aggravated child molestation “sometime between June 1 and July 1, 2020.” This indictment, however, was dismissed based upon the trial court’s grant of Buenrrostro’s special demurrer to the indictment. 2 The evidence presented at trial showed that Buenrrostro and C.R. were cousins
who lived across the street from each other. At all relevant times, Buenrrostro was 17
years old; C.R. was 12 years old at the start of the summer of 2020 and turned 13 on
July 17, 2020. In August 2020, Buenrrostro sent C.R.’s older sister some text
messages asking if he could send her pictures of his penis because he wanted to have
sex with J.M., his 14-year-old girlfriend, and he wanted to “make sure that it wasn’t
small.” Then, at Thanksgiving 2020, one of C.R.’s sisters found lewd Snapchat
messages between Buenrrostro and C.R., wherein Buenrrostro described sexual acts
he would like to try with C.R. and made numerous requests for her to come to his
house. C.R.’s sister and mother confronted her about the messages, and C.R.
disclosed that she and Buenrrostro had engaged in anal sex.
C.R. testified at trial and described the acts of anal and oral sodomy Buenrrostro
committed against her. She testified that the abuse started when she was 12 years old
and continued after her 13th birthday; however, she could not remember the exact
dates that the molestation occurred.
Buenrrostro took the stand in his own defense, denied the allegations, and
provided a partial alibi defense. Specifically, he testified that, during the summer of
3 2020, he worked with his father Monday through Saturday. He would wake up at 5
a.m., leave with his father around 6 a.m., work anywhere from 9 to 12 hours for his
father’s construction company, and go home; regarding the specific dates in the
indictment, Buenrrostro testified that he was at work “until night time.” He also
testified that a friend of his created a Snapchat account for him in the summer of 2019
and that they both had access to that account; he denied sending any of the Snapchat
messages to C.R.2
The jury acquitted Buenrrostro of Count 3 but found him guilty of all remaining
counts. The trial court sentenced Buenrrostro to concurrent sentences of 25 years to
serve followed by life on probation on Counts 1 and 4; the remaining counts were
merged for sentencing purposes.
2. Trial Court Errors
On appeal, Buenrrostro alleges that the trial court erred by: (a) denying his
amended special demurrer, (b) admitting extrinsic act evidence concerning J.M., and
(3) charging the jury that the indicted offenses could be proven at any time within the
2 The record reflects that the messages sent from Buenrrostro’s Snapchat account to his cousins utilized nicknames that he called the girls. 4 statute of limitations even though Buenrrostro had provided an alibi at trial. We
address each claim in turn.
(a) Buenrrostro contends that the trial court erred by denying his pre-trial
amended special demurrer because the counts in his indictment were not sufficiently
particular to “distinguish identical counts from one another.” “A defendant who has
timely filed a special demurrer is entitled to an indictment perfect in form and
substance. In a post-conviction appeal of a trial court’s pretrial ruling denying a special
demurrer, however, we apply a harmless error standard of review.” (Citations and
punctuation omitted) Huber v. State, 368 Ga. App. 401, 408 (3) (890 SE2d 271)
(2023). Indeed, a defendant “must show that he was prejudiced by being tried on a
defective accusation; without harm, an erroneous overruling of a special demurrer is
not a basis for reversal.” (Citations and punctuation omitted.) Andemical v. State, 336
Ga. App. 661, 665 (2) (786 SE2d 238) (2016).3
Here, even assuming that the trial court erred in denying the special demurrer
because Counts 1 through 3 were identical to one another as were Counts 4 through
6, Buenrrostro does not argue, nor is there anything in the record to indicate that he
3 Instead, Buenrrostro argues, incorrectly, that no showing of prejudice is required for this claim. 5 was prejudiced by any alleged deficiencies in the indictment. As discussed above,
Buenrrostro testified in his own defense that he could not have committed the crimes
because he worked long hours during the entire summer of 2020, including the two
specific days listed in the indictment. Moreover, Buenrrostro was only sentenced on
two of the six charged counts and those counts specifically alleged different acts of
sodomy. Consequently, this enumeration fails. See O’Rourke v. State, 327 Ga. App.
628, 633 (2) (760 SE2d 636) (2014) (affirming the overruling of a special demurrer to
an indictment that alleged a range of dates that offense could have occurred where
defendant failed to show that he was surprised or otherwise prejudiced by alleged
deficiency in indictment).
(b) Next, Buenrrostro contends that the trial court erred by admitting messages
of a sexually explicit nature between Buenrrostro and J.M. Specifically, Buenrrostro
alleges that the messages were inadmissible under OCGA §§ 24-4-404 (b), 24-4-413,
and 24-4-414 of the evidence code. However, nothing in the record or the briefs of the
parties reflect that the complained of messages were actually admitted as evidence at
trial. Accordingly, this claim is without merit.
6 (c) In his last claim of trial court error, Buenrrostro contends that the trial court
plainly erred when it instructed the jury that the offenses charged could be proven on
any date within the statute of limitations when Buenrrostro had presented an alibi
defense. It is well settled that, to show plain error, an appellant
must show an error: (1) that has not been “affirmatively waived”; (2) that is “clear or obvious”; and (3) that affected his “substantial rights.” In other words, if an alleged error regarding a jury instruction has not been affirmatively waived, then the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.
(Citations and punctuation omitted.) Jefferson v. State, 360 Ga. App. 75, 76 (1) (860
SE2d 614) (2021). Applying this standard, we see no error let alone plain error.
Buenrrostro relies on the following language from our Supreme Court’s
decision in Reed v. State, 294 Ga. 877 (757 SE2d 84) (2014), to argue that the trial
court clearly erred: “except where the exact date of the offense is alleged to be an
essential element thereof or where the accused raises an alibi defense, any variance
between the date listed in the indictment and the date on which the crime is proven
to have occurred is of no consequence.” Id. at 879 (3). Buenrrostro argues that this
language constituted a settled legal rule supporting a jury charge “that [his] alibi
defense required the State to prove the counts on the dates alleged in the indictment”
7 rather than the instruction given by the trial court “that the offenses could be proven
on any date within the statute of limitations.” We disagree.
As an initial matter, appellate counsel conceded at oral argument that the dates
charged in the indictment were not material, and also agreed that this is a novel issue
of law. These concessions defeat Buenrrostro’s argument that the trial court
committed clear and obvious error.4 See Williams v. State, 315 Ga. 490, 496 (2) (883
SE2d 733) (2023) (“An error is plain if it is clear or obvious under current law. An
error cannot be plain where there is no controlling authority on point and where the
most closely analogous precedent leads to conflicting results.” (citation omitted)).
Even if counsel had not conceded these points, however, we disagree that the
language relied upon in Reed shows that the trial court erred in its instruction to the
jury. The Reed decision emphasizes that “even though it has been held that a definite
date of an offense should be alleged in an indictment, the State is not restricted to
proof of the date stated. It is sufficient if the evidence demonstrates that the offense
was committed at any time within the statute of limitation[].” Id. at 879 (3). Instead,
when it comes to the interplay of the statute of limitation and a defendant’s alibi
4 The jury was not charged on the defense of alibi, and Buenrrostro does not claim that this amounted to plain error. 8 defense, well settled Georgia precedent states that “[a]libi evidence does not make the
date alleged in the indictment material unless proof of a different date effectively barred
an alibi defense.” (Emphasis supplied.) Lovelace v. State, 241 Ga. App. 774, 775 (1) (527
SE2d 878) (2000). Here, Buenrrostro was not “effectively barred” from presenting
an alibi defense because his testimony provided, at best, a partial alibi. Therefore, any
deviation by the State from the specific dates charged in the indictment did not
prejudice Buenrrostro’s alibi defense. See Pickstock v. State, 235 Ga. App. 451, 451
(509 SE2d 717) (1998). To the extent that Buenrrostro claims that he “was surprised
by any alleged variance between the allegata and the probata, it was incumbent upon
him to seek a continuance or some other relief in the trial court.” Shindorf v. State, 303
Ga. App. 553, 556 (2) (694 SE2d 177) (2010).
Accordingly, there is no error, let alone plain error, with the trial court’s
instruction of the jury that the State only needed to prove that the offenses occurred
within the statute of limitation.
3. Ineffective Assistance of Counsel
Buenrrostro alleges that he received ineffective assistance of trial counsel by
counsel’s failure to: (a) strike venire person 40 from the jury panel, (b) request a jury
9 charge on alibi, (c) object to the trial court’s refusal to instruct the jury on
misdemeanor aggravated child molestation, and (d) subpoena C.R.’s records from the
Department of Family and Children Services (“DFCS”) for in camera inspection by
the trial court. To establish ineffective assistance of counsel, a defendant must show
that his counsel’s performance was professionally deficient and that, but for such
deficient performance, there is a reasonable probability that the result of the trial
would have been different. See Strickland v. Washington, 466 U. S. 668 (III) (104 SCt
2052, 80 LE2d 674) (1984). If the defendant fails to satisfy either prong of the
Strickland test, this Court is not required to examine the other. See Green v. State, 291
Ga. 579, 580 (2) (731 SE2d 359) (2012).
“A court considering a claim of ineffective assistance must apply a ‘strong
presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” (Citation omitted.) Harrington v. Richter, 562 U. S. 86, 104
(IV) (131 SCt 770, 178 LE2d 624) (2011). Indeed, “[t]rial tactics and strategy . . . are
almost never adequate grounds for finding trial counsel ineffective unless they are so
patently unreasonable that no competent attorney would have chosen them.”
(Citation and punctuation omitted.) McNair v. State, 296 Ga. 181, 184 (2) (b) (766
10 SE2d 45) (2014). “In reviewing the trial court’s decision, we accept the trial court’s
factual findings and credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.” (Citation and punctuation
omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). With these
principles in mind, we review Buenrrostro’s claims of ineffective assistance.
(a) Buenrrostro contends that trial counsel was ineffective for failing to either
move to strike Juror 40 from the venire for cause or to remove Juror 40 by use of a
peremptory strike. The record shows that, during the statutory qualifying questions,
Juror 40 indicated that he had potential bias and that his mind was not perfectly
impartial between the State and the defense. However, upon further questioning by
the prosecutor, Juror 40 stated, “Now[] that I thought about it I think I could be
impartial,” and when asked if “after hearing everything you’ve heard thus far[,] have
you decided the guilt[] or innocence of this defendant,” Juror 40 replied, “No.” Later
in voir dire, Juror 40 explained that he had a prior bad experience with law
enforcement wherein he was wrongfully accused of being in possession of drugs. Juror
40 explained that, because of that bad experience, he felt “inferior” and he “tend[s]
11 to identify” and is “going to side with” the person who was arrested.5 He also
disclosed that his mother had been molested by a family member when she was young.
The prosecutor asked Juror 40 if his mother’s experience would prevent him from
being a fair and impartial juror in the instant case, to which Juror 40 replied “It could
be. I try to be fair and impartial but it could be.” When asked if he was willing to wait
for the evidence in the case “before you decide whether or not it could be,” Juror 40
replied, “yes.”
(i) Removal for Cause
Buenrrostro contends that Juror 40 made “statements wavering on
impartiality” and expressed bias against the defense in the case, was never
rehabilitated, and that trial counsel’s failure to request that Juror 40 be removed for
cause amounted to ineffective assistance. Pursuant to OCGA § 15-12-164 (d),
[t]he court shall also excuse for cause any juror who from the totality of the juror’s answers on voir dire is determined by the court to be substantially impaired in the juror’s ability to be fair and impartial. The juror’s own representation that the juror would be fair and impartial is to be considered by the court but is not determinative.
5 Notably, Juror 40 referred to the person who was arrested and accused as “the victim.” 12 “A juror can be disqualified for cause only if it can be shown that an opinion held by
the potential juror is fixed and definite such that the potential juror would be unable
to set aside the opinion and decide the case on the evidence or the court’s charge upon
the evidence.” (Citation omitted.) Barmore v. State, 323 Ga. App. 377, 379-380 (1)
(746 SE2d 289) (2013). “A prospective juror’s doubt as to his or her own impartiality
does not demand as a matter of law that he or she be excused for cause. . . . Nor is
excusal required when a potential juror expresses reservations about his or her ability
to put aside personal experiences.” (Citations omitted.) Holmes v. State, 269 Ga. 124,
126 (2) (498 SE2d 732) (1998). And, “[i]n the context of an ineffective assistance of
counsel claim, the question is whether considered from the perspective of voir dire
and not from hindsight, counsel’s failure to move to strike the juror for cause was
objectively unreasonable.” (Citation and punctuation omitted.) Barmore, 323 Ga. App.
at 380 (1).
Here, though Juror 40 expressed some doubts and reservations about his ability
to remain impartial and put aside his personal experience with his mother’s prior
trauma, he did not state that he had already formed an opinion about the case. Instead,
he expressly affirmed that he had not formed an opinion about Buenrrostro’s guilt or
13 innocence. Accordingly, Buenrrostro has failed to show that Juror 40 had an opinion
so fixed or definite that he was unable to decide the case based upon the evidence and
should have been stricken for cause. See Byrd v. State, 277 Ga. 554, 556 (2) (592 SE2d
421) (2004). And because Buenrrostro has failed to show that a motion to strike for
cause would have been successful, then he cannot show that trial counsel was deficient
for failing to move to strike Juror 40 for cause. See Barmore, 323 Ga. App. at 381 (1).
(ii) Use of Peremptory Strike
Buenrrostro also contends that trial counsel was ineffective for failing to use a
peremptory strike to remove Juror 40 from the panel. It is well settled that,
[t]rial counsel’s decisions about which jurors to strike and which to keep are tactical. And counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel. Indeed, tactical decisions by counsel will not form the basis for an ineffective assistance claim unless the decisions are so patently unreasonable that no competent attorney would have chosen them.
(Citation omitted.) Ware v. State, 321 Ga. App. 640, 642 (3) (742 SE2d 156) (2013).
Applying these standards, we cannot say that Buenrrostro has overcome the strong
presumption that his counsel’s decisions during jury selection were reasonable. The
record shows that counsel had used all nine peremptory strikes prior to reaching Juror
40, and Buenrrostro has not put forth any evidence or argument that counsel’s use of
14 his other peremptory strikes was unreasonable. Even assuming that counsel had a
remaining peremptory strike to use on Juror 40, we cannot say that not utilizing that
strike would have been so patently unreasonable that no competent attorney would
have chosen to keep Juror 40 on the panel. Juror 40 testified that he had a prior bad
experience with law enforcement and that, based upon this experience, he identified
with persons who had been wrongfully arrested and accused. Given that trial counsel
argued to the jury that law enforcement did not do a thorough criminal investigation
and that Buenrrostro had been falsely accused of committing these crimes, we cannot
say that trial counsel’s jury selection was “so patently unreasonable that no competent
attorney would have followed such a course.” (Citation and punctuation omitted.)
Hicks v. State, 295 Ga. 268, 276 (3) (b) (759 SE2d 509) (2014).
(b) Buenrrostro also argues that trial counsel was ineffective for failing to
request a charge on alibi, his sole defense at trial. Assuming without deciding that trial
counsel was deficient for failing to request this charge, Buenrrostro cannot prove
prejudice. “The defense of alibi involves the impossibility of the accused’s presence
at the scene of the offense at the time of its commission. The range of the evidence in
respect to time and place must be such as reasonably to exclude the possibility of
15 presence.” OCGA § 16-3-40. Further, “[w]here the defense of alibi and the question
of personal identity are virtually the same defense, the omission of the court to
instruct separately on alibi is not error.” Herring v. State, 238 Ga. 288, 289 (3) (232
SE2d 826) (1977). See also Hill v. State, 290 Ga. App. 140, 142 (2) (658 SE2d 863)
(2008) (explaining that “alibi is not an affirmative defense; since the true effect of an
alibi defense is to traverse the State’s proof that the defendant committed the crime,
the charge that the burden is on the state to prove that the defendant committed the
crime beyond a reasonable doubt itself necessarily covers the question of whether the
evidence of alibi was sufficient to create a reasonable doubt” (citation omitted.)).
Here, the trial court fully instructed the jury on identity, the burden of proof,
the presumption of innocence, and grave suspicion. Moreover, Buenrrostro’s alibi
testimony did not establish the impossibility of his presence at the scene of the
charged crimes. The evidence at trial showed that Buenrrostro and C.R. lived across
the street from one another at the time of the alleged crimes; Buenrrostro also testified
that, throughout the summer of 2020, he worked up to 12 hour days Monday through
Saturday, but not Sunday. While Buenrrostro testified that he started work early on
the days in question and continued working “until nighttime,” he did not fully
16 account for his whereabouts that day. Based on the foregoing, we cannot say that
Buenrrostro has shown a reasonable probability of a different outcome had the alibi
instruction been given. See Hollis v. State, 359 Ga. App. 249, 254 (6) (b) (857 SE2d
254) (2021).
(c) During the charge conference, trial counsel requested that the court charge
the jury on the lesser-included misdemeanor offense of aggravated child molestation,
arguing that there was slight evidence to support the charge that C.R. was 13 years old
at the time the abuse occurred and Buenrrostro was 17 years old. See OCGA § 16-6-4
(d) (2). The trial court denied the request to charge, finding no slight evidence to
support it, and trial counsel did not object. Buenrrostro alleges that trial counsel was
ineffective for failing to object to the trial court’s ruling. We disagree.
OCGA § 16-6-4 (d) (2) provides that a person is guilty of the misdemeanor
aggravated child molestation where, in relevant part, “[t]he victim is at least 13 but
less than 16 years of age;” and “[t]he person convicted of aggravated child
molestation is 18 years of age or younger and is no more than four years older than the
victim.” (Emphasis supplied.) Id. at (A), (B). The evidence presented below showed
that C.R.’s date of birth is July 17, 2007, and that she was 12 years old during parts of
17 the summer of 2020, while the jury learned that Buenrrostro was 17 throughout the
summer of 2020. Accordingly, C.R. was not “at least 13” when the abuse began. And
as to the portion of time when C.R. was 13, the record shows that Buenrrostro was 17
years old at all relevant times, whereas C.R. was 12 when the abuse started and 13
when the abuse ended. Therefore, Buenrrostro is more than four years older than
C.R., and the trial court correctly determined that there was no slight evidence to
support the requested misdemeanor charge. Based on the foregoing, Buenrrostro has
failed to show that trial counsel could have properly objected to the trial court’s
ruling, and, thus, failed to establish that trial counsel acted deficiently. See Wesley v.
State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010) (trial counsel cannot be deficient
by failing to make a meritless objection).6
(d) Buenrrostro alleges that trial counsel was ineffective for failing to obtain
C.R.’s DFCS records because, he argues, the records provided slight evidence to
6 Buenrrostro also alleges that trial counsel was ineffective for failing to request a special verdict form for the jury to make factual findings concerning C.R.’s age at the time of the abuse. However, because Buenrrostro was not entitled to the misdemeanor jury instruction, he cannot show that trial counsel was deficient for failing to request a special verdict form on the issue of the victim’s age. 18 support the requested instruction for misdemeanor aggravated child molestation. For
the reasons discussed in Division 3 (c) above, however, this claim fails.7
4. Finally, Buenrrostro contends that the cumulative effect of the alleged errors
of counsel and the court prejudiced the outcome of his trial. “Under State v. Lane, 308
Ga. 10 (838 SE2d 808) (2020), we must consider collectively the prejudicial effect, if
any, of trial court errors, along with the prejudice caused by any deficient performance
of counsel.” (Citation and punctuation omitted.) Talley v. State, 314 Ga. 153, 165-166
(4) (875 SE2d 789) (2022). “To establish cumulative error, [Buenrrostro] must show
that (1) at least two errors were committed in the course of the trial; and (2)
considered together along with the entire record, the multiple errors so infected the
jury’s deliberation that they denied [Buenrrostro] a fundamentally fair trial.” Jackson
v. State, 317 Ga. 95, 107 (4) (891 SE2d 866) (2023). Here, we assumed one trial court
error and two instances of deficient performance. That said, given our conclusions
7 Buenrrostro also claims that trial counsel was ineffective for failing to obtain the DFCS records because, he contends, they included prior inconsistent statements made by C.R. concerning the allegations of molestation. However, the DFCS records specifically noted that all information included in the report was “secondhand information,” and a review of the records shows that they did not include any statements made by C.R. Given the lack of evidentiary value of these records, Buenrrostro cannot show prejudice. 19 above and reviewing the record as a whole, we conclude that Buenrrostro has failed
to establish that the combined prejudicial effect of these errors requires a new trial.
Judgment affirmed. McFadden, P. J., and Dillard, P. J., concur.