Luna-Fraide v. State

739 S.E.2d 75, 320 Ga. App. 66, 2013 Fulton County D. Rep. 572, 2013 WL 765606, 2013 Ga. App. LEXIS 119
CourtCourt of Appeals of Georgia
DecidedMarch 1, 2013
DocketA12A2300
StatusPublished
Cited by1 cases

This text of 739 S.E.2d 75 (Luna-Fraide 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
Luna-Fraide v. State, 739 S.E.2d 75, 320 Ga. App. 66, 2013 Fulton County D. Rep. 572, 2013 WL 765606, 2013 Ga. App. LEXIS 119 (Ga. Ct. App. 2013).

Opinion

Branch, Judge.

On appeal from his conviction for rape, child molestation, aggravated child molestation, and false imprisonment, Omar Luna-Fraide argues that the evidence was insufficient and that the trial court’s charge on child molestation authorized the jury to find him guilty of that crime in a manner other than that charged in the indictment. We find no 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, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on March 26, 2009, the nine-year-old victim told her mother that her private parts hurt. The mother noticed blood on the victim’s underwear and asked if anyone had touched her. The victim replied that Luna-Fraide had. LunaFraide was the family’s sole source of financial support at the time. The mother took the victim to the hospital, where the mother wrote a statement that the victim had told her that Luna-Fraide had wanted to sleep with the victim, that she was afraid of him doing so, and that he had put something like a finger inside her vagina four times. In a videotaped interview made shortly afterward at a child advocacy center, the victim said that Luna-Fraide had first groped her the previous Christmas. The victim testified that after her mother began working in 2009, the molestation “got worse and worse”: while Luna-Fraide was babysitting the victim, he took her into the bedroom he shared with the victim’s mother, pulled down her pants and underwear, touched and licked her privates, made her rub his penis, and penetrated her “bottom” with his penis.

Shortly after Luna-Fraide was arrested, the mother moved herself and the three children out of Luna-Fraide’s apartment and into the apartment of a couple, including a man named Carlos, who lived in the same complex. The mother admitted at trial that she continued to have “feelings” for Luna-Fraide after his arrest, that she had called him frequently, and that she had visited him in jail more than ten times.

[67]*67A psychologist who conducted a series of follow-up interviews with the victim testified at trial that the mother was uncommunicative during their first session. During a second session, the victim handed the psychologist a written note naming Carlos as her attacker and also insisting that her mother had not told her to say so. To the psychologist, this suggested that the victim had been coached on the identity of her attacker. At the same session, the victim cried and said that she felt guilty for accusing Luna-Fraide because he “had learned his lesson,” would not hurt anyone else, and could not visit his dying mother from jail. During the third session, the victim said that she was angry because “[Luna-Fraide] hurt her.” During the fourth session, the victim again named Carlos as her assailant and said that she was scared of him. The mother missed three subsequent therapy appointments and failed to mention that the family had been living with Carlos. The psychologist also testified that it was “very common” for victims of child sexual abuse to change their accounts of the abuse depending on “how much support they feel is around them.”

Luna-Fraide was charged with one count of rape, two counts of child molestation, two counts of aggravated child molestation, and one count of false imprisonment. At trial, the victim confirmed her original account naming Luna-Fraide as her attacker. The victim also testified that Carlos had touched her a number of times. A treating doctor testified that the victim’s hymen was consistent with penetration, that she was suffering from vaginal and anal chlamydia, that these features were consistent with sexual assault, and that the only means of contracting the disease was through sexual contact with an infected person. Luna-Fraide tested positive for chlamydia. A jury found him guilty on all counts, and the trial court sentenced him to 35 years to serve. His motion for new trial was denied.

1. Luna-Fraide first argues that the victim’s recantation rendered the evidence against him insufficient. We disagree.

(a) The jury in this case heard not only the victim’s account of the abuse at trial, in which she returned to naming Luna-Fraide as her assailant, but also testimony from her mother and a caseworker concerning the circumstances of her recantation. The evidence also supported a conclusion that Luna-Fraide suffered from chlamydia and that the victim contracted that disease as a result of his attacks. Finally, the mother’s involvement with Luna-Fraide after his arrest explained the distress the victim showed at and after her recantation. “[I]t was for the jury, rather than this Court, to resolve conflicts and to assess witness credibility.” (Citation, punctuation and footnote omitted.) King v. State, 268 Ga. App. 707, 709 (603 SE2d 54) (2004). The evidence was thus sufficient to affirm Luna-Fraide’s conviction for rape, child molestation, and aggravated child moles[68]*68tation. OCGA §§ 16-6-1 (a) (defining rape); 16-6-4 (a) (defining child molestation); 16-6-4 (c) (defining aggravated child molestation as “an offense of child molestation which act physically injures the child or involves an act of sodomy”); King, supra at 709-710 (despite victim’s recantation at trial, which could have been the result of her mother’s “disapproval,” evidence including the victim’s previous videotaped interview was sufficient to sustain her father’s conviction for child molestation); Rollins v. State, 318 Ga. App. 311, 313 (733 SE2d 841) (2012) (testimony of child molestation victim, standing alone, was sufficient to sustain defendant’s conviction).

(b) Under OCGA § 16-5-41 (a), a person commits the offense of false imprisonment “when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” Thus “[a]ll that is required to prove false imprisonment is ... an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will).” (Citation and punctuation omitted.) Murrell v. State, 317 Ga. App. 310, 316 (1) (730 SE2d 675) (2012); see also OCGA § 16-5-41 (a). “A brief detention is sufficient[, and w]hether the detention amounted to false imprisonment was for the jury to decide.” (Footnote omitted.) Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998).

The indictment alleged that Luna-Fraide “did unlawfully confine and detain” the victim, “a child under 14 years of age and not being the child of the accused ...

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739 S.E.2d 75, 320 Ga. App. 66, 2013 Fulton County D. Rep. 572, 2013 WL 765606, 2013 Ga. App. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luna-fraide-v-state-gactapp-2013.