Estuardo Bernal v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES 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
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
November 30, 2021
In the Court of Appeals of Georgia
A21A1399. BERNAL v. THE STATE.
HODGES, Judge.
This is the second appearance of this case in this Court. In Bernal v. State, 358
Ga. App. 681 (856 SE2d 64) (2021) (“Bernal I”), we affirmed in part the Superior
Court of Cherokee County’s order denying Estuardo Bernal’s motion for new trial as
amended following his convictions for child molestation, rape, and terroristic threats,
but vacated a portion of the trial court’s order in which a successor judge failed to
exercise discretion in the review of Bernal’s “general grounds” argument. See OCGA
§§ 5-5-20, 5-5-21. On remand, the trial court entered an order again denying Bernal’s
motion for new trial. Bernal appeals, arguing that the evidence was insufficient to
support his convictions for rape and child molestation and that he received ineffective
assistance of counsel at sentencing. Finding no error, we affirm.
1. Bernal first contends, as he did in his original appeal, that the evidence was
insufficient to support his convictions. However, the substance of Bernal’s argument
is that he is entitled to a new trial pursuant to OCGA §§ 5-5-20 and 5-5-21. This
argument is without merit.
In Bernal I, we found, when viewed in a light most favorable to the verdict, the
evidence adduced at trial revealed that
Bernal lived with his long-time girlfriend (“the adult victim”), their two
children, and the adult victim’s daughter, J. G. (“the child victim”), in
Canton, Cherokee County. Bernal’s relationship with the adult victim
was often turbulent, and the child victim frequently heard the pair
fighting and her mother crying. The child victim also witnessed Bernal
hit the adult victim repeatedly. By 2015, the adult victim attempted to
avoid Bernal by retreating to their children’s room when he arrived
home from work. However, the adult victim described an incident in
which Bernal chased her down some stairs, caught her on a couch, and
forcibly had sexual intercourse with her as she fought him and told him
to stop. She relayed another occasion in which Bernal stormed the
children’s room, dragged the adult victim from the room, and again
forced himself on her against her will.
The day after Bernal dragged the adult victim from their children’s
room, she went to the Canton police station to report the assault. An
officer directed her to a local hospital for testing, which revealed the
presence of sperm, bruising, and a rash. The next day, the adult victim
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visited the station again and indicated she did not want to pursue
charges against Bernal. She suggested that she did not want to proceed
because a man with whom she had recent relations was no longer in the
country and that, if Bernal found out about him, Bernal would have
killed her.
In November 2015, Bernal moved out of the family’s apartment, but
begged the adult victim to reconcile in February 2016. The two began
dating again, and Bernal supervised the children when the adult victim
worked at night. Thereafter, Bernal twice visited the adult victim at her
job after taking her children to her sister’s house. During the second
visit, which occurred after the adult victim informed Bernal that she no
longer wished to date him, Bernal told her that she “was going to die and
… something was going to happen to [her] in one week if [she] didn’t
go back with him.” As the adult victim pleaded for Bernal to explain
himself, he returned to his truck and said, “I’m going to kill you” as he
drove away. When the adult victim went to retrieve their children, they
exclaimed, “daddy’s going to kill you.”
That night, the adult victim again called the police. As the adult victim
ran to her door to admit a responding police officer, the child victim
stopped her and said, “Mommy, I’ve got something to tell you.” The
child victim then told the adult victim that, one evening when she was
sleeping in the same bed as Bernal, Bernal began pulling her head
toward his penis as she tried to push him away. The child victim also
reported the incident to the responding officer.
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(Footnote omitted.) 358 Ga. App. at 682-683.
As a threshold matter, we do not reach Bernal’s “general grounds” argument
as it is presented. OCGA § 5-5-20 authorizes the trial court to grant a new trial “[i]n
any case when the verdict of the jury is found contrary to evidence and the principles
of justice and equity[,]” and OCGA § 5-5-21 empowers the trial court to grant a new
trial “where the verdict may be decidedly and strongly against the weight of the
evidence even though there may appear to be some slight evidence in favor of the
finding.” Read together, these statutes provide
the trial court broad discretion to sit as a thirteenth juror and weigh the
evidence on a motion for new trial alleging [the foregoing] general
grounds. Our sovereign, the law, has in effect said to the trial judge: We
charge you to let no verdict stand unless your conscience approves it,
although there may be some slight evidence to support it.
(Citations and punctuation omitted.) Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d
311) (2013). Importantly,
[t]he decision to grant a new trial on grounds that the verdict is strongly
against the evidence is one that is solely in the discretion of the trial
court. Whether an appellant is asking this court to review a lower court’s
refusal to grant a new trial or its refusal to grant a motion for directed
verdict, this court can only review the case under the standard espoused
in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)
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to determine if the evidence, when viewed in the light most favorable to
the prosecution, supports the verdict.
(Citations and punctuation omitted; emphasis supplied). Batten v. State, 295 Ga. 442,
444 (1) (761 SE2d 70) (2014), citing Willis v. State, 263 Ga. 597 (1) (436 SE2d 204)
(1993). Because OCGA §§ 5-5-20 and 5-5-21 offer remedies reserved to the trial
court, we review Bernal’s insufficiency of the evidence argument pursuant to Jackson
v. Virginia only.1
Under this well-recognized standard, we “view the evidence in the light most
favorable to the verdict[,]” and “[w]e inquire only whether any rational trier of fact
might find beyond a reasonable doubt from that evidence that the defendant is guilty
of the crimes of which [he] was convicted.” (Citation omitted.) Brown v. State, 356
Ga. App. 516, 519 (1) (848 SE2d 126) (2020). Here, Bernal’s sole argument in
support of this enumeration is that “there were many inconsistencies in the testimony”
and that these unidentified inconsistencies “should have been weighed in favor of
[Bernal].” Even assuming that this singular statement is sufficient to preserve
1
In contrast to his original appeal, Bernal has not identified anything in the
record suggesting that the trial court failed to apply the proper standard of review on
remand. See, e.g., Copeland v. State, 325 Ga. App. 668, 672 (3) (754 SE2d 636)
(2014). Furthermore, the record does not indicate that the trial court applied an
incorrect standard of review.
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Bernal’s argument,2 these matters clearly “concern the weight of the evidence and the
credibility of the witnesses, and, as such, they provide no basis for reversal.”
Chauncey v. State, 283 Ga. App. 217, 219 (1) (641 SE2d 229) (2007) (“Resolving
evidentiary conflicts and inconsistencies, and assessing witness credibility, are the
province of the factfinder, not this Court. As long as there is some evidence, even
though contradicted, to support each necessary element of the state’s case, this Court
will uphold the verdict.”) (citation and punctuation omitted); see also Wright v. State,
319 Ga. App. 723, 727 (1) (738 SE2d 310) (2013).
We conclude that, when viewed in a light most favorable to the verdict, the
evidence was sufficient for a rational trier of fact to find Bernal guilty beyond a
reasonable doubt of the crimes for which he was convicted. See Brown, 356 Ga. App.
at 519 (1); OCGA §§ 16-6-4 (child molestation), 16-6-1 (rape), 16-11-37 (terroristic
threats).
2. Next, Bernal contends that he received ineffective assistance of trial counsel
due to counsel’s failure to advise him of his right to present evidence at sentencing.
2
See generally Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106)
(2014) (“[M]ere conclusory statements are not the type of meaningful argument
contemplated by our rules.”) (citation and punctuation omitted); Court of Appeals
Rule 25 (c) (2) (“Any enumeration of error that is not supported in the brief by
citation of authority or argument may be deemed abandoned.”).
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In particular, Bernal asserts that trial counsel failed to: (1) speak with him concerning
a sentencing plan or have a meaningful conversation with him; (2) request additional
time to call witnesses for sentencing; and (3) permit him an opportunity to review
victim impact statements. This argument is unpersuasive.
To prevail on a claim of ineffective assistance of counsel during sentencing,
a defendant “must show that his trial counsel rendered constitutionally deficient
performance and that actual prejudice of constitutional proportions resulted.” Perkins
v. Hall, 288 Ga. 810, 811 (II) (708 SE2d 335) (2011), overruled on other grounds,
State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020). To that end, “[t]o show sufficient
prejudice to prevail on his ineffective assistance claim, [Bernal] must show that there
is a reasonable probability (i.e., a probability sufficient to undermine confidence in
the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Citation and punctuation omitted.) Perkins, 288 Ga. at
811-812 (II). Of course, both “[e]rror and prejudice must be shown in order to prevail
on a claim of ineffective assistance of counsel.” (Citation and punctuation omitted;
emphasis supplied.) Zellmer v. State, 257 Ga. App. 346, 348 (2) (571 SE2d 174)
(2002).
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Pretermitting whether trial counsel performed deficiently in the manner
claimed by Bernal, Bernal has failed to show that he was prejudiced by counsel’s
alleged inaction. During the hearing on his motion for new trial, Bernal did not
introduce any evidence concerning the witnesses he would have called at sentencing,
what the witnesses’ testimony might have included, what his response would have
been to the victim impact statements presented during sentencing, or, indeed, what
beneficial effect — if any — such evidence might have had on his sentencing. Cf.
Davis v. State, 286 Ga. 74, 78 (4) (686 SE2d 249) (2009) (holding that defendant
failed to show prejudice resulting from ineffective assistance of counsel at sentencing
where defendant did not “suggest what evidence might have served to mitigate his
sentence; he offered no witnesses and proffered no affidavits on this issue at the
hearing on the motion for new trial”); Harris v. State, 345 Ga. App. 80, 82 (1) (d)
(812 SE2d 342) (2018) (same). In short, Bernal did not satisfy his burden to
demonstrate a “reasonable probability . . . that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Citation and
punctuation omitted.) Perkins, 288 Ga. at 812 (II). Having failed to show prejudice,
it necessarily follows that Bernal has not proven that he received ineffective
assistance of trial counsel at sentencing.
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In sum, we conclude that the evidence was sufficient to support Bernal’s
convictions. We further conclude that Bernal has failed to satisfy his burden to
demonstrate ineffective assistance of trial counsel. Therefore, we affirm the trial
court’s order denying Bernal’s motion for new trial as amended.
Judgment affirmed. Miller, P. J., and Pipkin, J., concur.
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