Ruben Alvarado v. State

• Court: Court of Appeals of Georgia
• Decided: September 7, 2022
• Docket: A22A0882
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER and MARKLE, 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

September 7, 2022

In the Court of Appeals of Georgia A22A0882. ALVARADO v. THE STATE.

MERCIER, Judge.

Following a jury trial, Ruben Alvarado was convicted of rape and child

molestation.1 Alvarado appeals, claiming that the trial court erred by admitting

hearsay testimony and that he received ineffective assistance of counsel. For the

reasons that follow, we affirm.

Construed in the light most favorable to the verdict, the evidence at trial

showed the following. See Newman v. State, 309 Ga. 171, 172 (1) (844 SE2d 775)

(2020). The victim, her brother and Alvarado grew up together, and Alvarado’s

1 The jury found Alvarado not guilty of statutory rape. Additionally, the trial court entered nolle prosequi on a charge of aggravated child molestation and criminal attempt to commit a crime, and granted a motion for directed verdict on criminal solicitation. grandmother would regularly babysit the victim and her brother. Alvarado’s family

and the victim’s family were so close that the victim and her brother considered

Alvarado’s grandmother to be their grandmother as well.

In June of 2015, the victim’s brother accessed his mother’s phone, which the

victim used, and found a series of messages on the mobile phone application “Kik”

between the victim and Alvarado setting up a time to meet. Given the age difference

between the victim and Alvarado (the victim was 12 years old at the time, and

Alvarado was 20), the victim’s brother thought it was odd that they were planning to

meet. In order to ascertain the nature of the relationship between the victim and

Alvarado, the victim’s brother sent Alvarado messages through Kik while pretending

to be the victim. In these messages, Alvarado told the victim that she should tell her

mother that she wanted to spend the night with him because the victim “wan[ted to]

come suck [his penis.]” Alvarado asked who owned the phone the victim was using,

and the victim’s brother responded “Mom” and Alvarado said “what if she sees this!?

Delete Now.” The victim’s brother took photographs of the Kik conversation, and the

photographs of the messages were admitted into evidence at trial.

Following his conversation on Kik with Alvarado, the victim’s brother went

to Alvarado’s house and confronted him about the messages. Alvarado did not

2 explain or respond to questions from the victim’s brother. At a later point Alvarado

called the victim’s mother and left a voicemail saying that “he wanted to make things

right[.]”

The victim’s brother reported the conversation to his mother and called 911.

A Gwinnett County Police officer responded to the call and spoke with the victim, her

mother and her brother at Alvarado’s grandmother’s house. The victim told the

officer that Alvarado had put his penis in her mouth and in her private parts. The

victim later told the nurse who conducted her sexual assault examination that

Alvarado “put his private part in [her] private parts and [her] mouth” and that he “put

something on his privates that was like plastic[.]” During the examination, the nurse

noted redness on the victim’s labia minora, which he testified could be caused by

“repeated attempt[ed] penetration into the vagina,” but it was inconclusive.2

The victim, who was 16 years old at the time of trial, took the stand. The

prosecutor asked if she recalled being interviewed by police officers and “telling them

about what happened,” and she said yes, and the prosecutor asked “when you were

. . . speaking to law enforcement was that the truth,” and again the victim responded

2 The nurse testified that he frequently does not observe injuries in children who have been sexually assaulted.

3 yes. On cross-examination, counsel for Alvarado asked the victim about the day in

question, and she testified that she went into Alvarado’s room to watch a movie with

his sister. She was also asked on cross-examination if she had ever told Alvarado’s

grandmother that anyone treated her in a way that made her uncomfortable, and she

said no. The victim did not testify about the incident at trial.

A special victims unit detective conducted a forensic interview of the victim,

that was played for the jury at trial. In the interview, the victim said that Alvarado

“touched [her] in [her] private part” with “his front part” or “penis” twice, and with

his fingers, and that he hurt her. She also said that he pulled her shorts down and took

photographs of her.

The detective also interviewed Alvarado, and the interview was played for the

jury. In the interview, Alvarado denied that he had sexually assaulted the victim but

admitted that he had the Kik application on his phone and that he called the victim’s

mother.

Following his conviction, Alvarado filed a motion for new trial, which the trial

court denied.

1. Alvarado claims that the trial court erred by admitting the victim’s hearsay

statements when she did not testify regarding the incident at trial. Alvarado did not

4 object to the evidence on this ground at trial, so we review his claim only for plain

error. See OCGA § 24-1-103 (d), Grier v. State, 313 Ga. 236, 240 (3) (869 SE2d 423)

(2022). To establish plain error, Alvarado “must point to an error that was not

affirmatively waived, the error must have been clear and not open to reasonable

dispute, the error must have affected his substantial rights, and the error must have

seriously affected the fairness, integrity, or public reputation of judicial proceeding.”

Grier, supra at 240-241 (3) (citation and punctuation omitted).

As an initial matter, we must determine whether an error occurred. See Grier,

supra at 243 (3) (d); Shaum v. State, 355 Ga. App. 513, 516 (2) (844 SE2d 863)

(2020). At the time of Alvarado’s offenses in 2015, the Child Hearsay Statute,

provided:

A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child’s testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the

5 child made such statement is subject to cross-examination regarding the out-of-court statements

OCGA § 24-8-820 (2013).

Here, the State provided notice of its intent to use the victim’s out-of-court

statements, the victim testified at trial, and the persons to whom the victim made the

statements were subject to cross-examination at trial. While the victim did not testify

as to the specifics of the incident in question at trial, “it is undisputed that the victim

appeared at trial, took the witness stand, and was available for cross-examination[.]”

Allison v. State, 356 Ga. App. 256, 260 (1) (846 SE2d 222) (2020) (footnote omitted).

As we have previously held, “there is no requirement that the child victim testify as

to [the defendant’s] specific actions or the specific contents of her interview video,

let alone that the State successfully elicit such testimony on direct examination.” Id.

The victim’s prior statements and her testimony at trial simply presented a question

of credibility for the jury; it did not render the prior statements inadmissible under the

Child Hearsay Statute. See id; Abernathy v. State, 357 Ga. App. 732, 737 (1) (849

SE2d 489) (2020). There was therefore no error, much less plain error, in the

admission of the victim’s prior statements, as the requirements of OCGA § 24-8-820

(2013) were satisfied. See generally Allison, supra; Cornell v. State, 349 Ga. App.

6 883, 884 (2) (827 SE2d 63) (2019); Kirkland v. State, 334 Ga. App. 26, 32-33 (2)

(778 SE2d 42) (2015) (testimony from victim’s family and her recorded forensic

interview were admissible under Child Hearsay Statute even when victim was

unresponsive to several questions at trial).

2. Alvarado claims that his trial counsel was ineffective by failing to object to

the State’s direct examination of the victim, by failing to cross-examine the victim

about the incident and by failing to object to the State’s closing argument. To prevail

on this claim, Alvarado “must prove both deficient performance by his counsel and

resulting prejudice.” Grier, supra at 245 (4), citing Strickland v. Washington, 466 U.

S. 668 (104 SCt 2052, 80 LE2d 674) (1984). In order to prove deficient performance,

“he must show that his attorney performed at trial in an objectively unreasonable way

considering all the circumstances and in the light of prevailing professional norms.”

Id. (citation and punctuation omitted). However, there exists a “strong presumption

that counsel’s performance fell within a wide range of reasonable professional

conduct, and that counsel’s decisions were made in the exercise of reasonable

professional judgment.” Id. (citation and punctuation omitted). For the second

element, in order to establish prejudice, Alvarado “must show a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

7 would have been different.” Id. at 245-246 (4) (citation and punctuation omitted). If

the defendant fails to show one of the two elements, we need not address the other.

Id. at 246 (4).

(a) Alvarado argues that his trial counsel was ineffective for failing to object

when the prosecutor asked the victim if she had told the truth during her forensic

interview. He argues that the inquiry was “impermissibly bolstering[.]”

“It has been repeatedly held that a witness, even an expert, can never bolster

the credibility of another witness as to whether the witness is telling the truth.”

Handley v. State, 289 Ga. 786, 787-788 (2) (a) (716 SE2d 176) (2011) (citation and

punctuation omitted). However, Alvarado argues that the victim bolstered her own

testimony by stating that she told the truth in her forensic interview, and “[w]e know

of no legal reason . . . why a witness should be prohibited on direct examination from

asserting his [or her] own credibility by testifying that he [or she] is telling the truth

and giving some explanation.” Thomas v. State, 318 Ga. App. 849, 856 (4) (c) (734

SE2d 823) (2012); see also Handley, supra at 788 (2) (a); Hardin v. State, 344 Ga.

App. 378, 382 (1) (a) (810 SE2d 602) (2018) (“when a witness’s statement does not

directly address the credibility of another witness, there is no improper bolstering”)

(emphasis supplied).

8 Further, “[t]he Child Hearsay Statute actually contemplates testimony from

both the child and those witnessing the child’s later reaction, even if the hearsay may

be ‘bolstering.’ Any ‘bolstering’ can be explored by defendant in cross-examination.”

Abernathy, supra at 738 (2) (citation and punctuation omitted). Thus, a bolstering

objection would have been without merit, and failure to make a meritless objection

cannot be evidence of ineffective assistance. See id.

(b) Alvarado argues that his counsel provided ineffective assistance by failing

to cross-examine the victim regarding the incident. However, Alvarado failed to

question his trial counsel about his cross-examination of the victim at the hearing on

his motion for new trial. Because Alvarado did not ask his trial counsel about his

cross-examination of the victim, we presume that any reason relating to trial counsel’s

cross-examination of the victim was strategic and would not amount to ineffective

assistance. See generally Newman v. State, 309 Ga. 171, 176 (2) (a) (844 SE2d 775)

(2020) (“In the absence of testimony to the contrary, counsel’s actions are presumed

to be strategic, and strongly presumed to fall within the wide range of reasonable

professional assistance.”). Furthermore, “decisions about cross-examination do not

amount to deficient performance unless they are so unreasonable that no competent

attorney would have made them under similar circumstances.” Id. at 178 (2) (d)

9 (citation and punctuation omitted). Alvarado’s trial counsel extensively cross-

examined the detective regarding the victim’s forensic interview and pointed to

inconsistencies in the victim’s statement through his cross-examination. While

Alvarado’s appellate counsel may have chosen a different strategy for the cross-

examination of the victim, we cannot say that trial counsel performed deficiently. See

generally id.

(c) Finally, Alvarado claims that his trial counsel was ineffective for failing to

object to the State’s closing argument. “Whether to object to a particular part of a

prosecutor’s closing argument is a tactical decision, and counsel’s decision not to

make an objection must be patently unreasonable to rise to the level of deficient

performance.” Smith v. State, 296 Ga. 731, 735-736 (2) (b) (770 SE2d 610) (2015)

(citations and punctuation omitted).

Alvarado points to a statement by the prosecutor in her closing argument that

Alvarado did not retain the presumption of innocence. The prosecutor stated: “At the

beginning of this trial this Defendant was cloaked in the presumption of innocence.

But that’s not a permanent status. That doesn’t stay with him forever. Keep that in

mind. Just because he had it in the beginning doesn’t mean he has it now.” However,

she then said “[i]t’s my burden and I bear it.” While the prosecutor’s closing

10 argument was unclear, she immediately attempted to clarify her remarks. Moreover,

the trial court properly instructed the jury on the burden of proof and presumption of

innocence, and we presume that jurors follow the law. See Clark v. State, 307 Ga.

537, 544-545 (2) (c) (837 SE2d 265) (2019) (trial counsel not ineffective for failing

to object to prosecutor’s plain misstatement regarding presumption of innocence

during closing argument where the trial court correctly charged the jury). Compare

Debelbot v. State, 308 Ga. 165, 167 (839 SE2d 513) (2020) (remark by prosecutor

during closing argument that “[y]ou don’t have to be fifty-one percent sure” was both

an egregious misstatement of the law to which there was no good reason a reasonably

competent lawyer would have failed to object and “uniquely harmful”). As a result,

this enumeration of error fails.

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