Ariel Sarmiento-Naranjo v. State ( 2022 )

SECOND DIVISION
RICKMAN, C. J.,
MILLER, P. J., and PIPKIN, J.
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
August 5, 2022
In the Court of Appeals of Georgia
A22A0992. SARMIENTO-NARANJO v. THE STATE.
RICKMAN, Chief Judge.
On appeal from his conviction for child molestation, rape, incest, and
aggravated sexual battery concerning his daughter, Ariel Sarmiento-Naranjo argues
that the trial court erred in charging the jury and in overruling a hearsay objection.
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.” 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,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III)
(B) (99 SCt 2781, 61 LE2d 560) (1979).
So viewed, the record shows that in 2019, shortly after the victim was given a
journal for her twelfth birthday, she made an entry in it disclosing that she wanted to
die and that she had been “SEXUALLY abused by my OWN DAD!” The victim also
wrote that she did not “want to say anything [because] he can get deported and its
going to be my fault.” When the mother asked the victim about the entry, she
confirmed the abuse. The victim then disclosed the father’s abuse to her therapist,
who contacted the Department of Family and Children Services. At a subsequent
interview at the Child Advocacy Center and at trial, the victim stated that starting in
October 2018, during her visits to his house on weekends and school breaks,
including the winter holiday, her father had penetrated her with his finger and his
penis and forced her to masturbate him.
Sarmiento-Naranjo was arrested and charged with three counts of child
molestation, three counts of rape, three counts of incest, and one count of aggravated
sexual battery. During the presentation of the State’s evidence, and over a hearsay
objection, the examining nurse testified that the mother had told her that the victim
“had been raped.” The trial court refused to give the defense’s requested pattern
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charge on grave suspicion. The State obtained a charge on prior difficulties over
objection.
After the jury found Sarmiento-Naranjo guilty on all counts, the trial court
merged five of the counts and sentenced him to life in prison for rape, with the
remainder of the sentences running concurrently. His motion for new trial was denied.
1. Sarmiento-Naranjo first argues that the trial court erred when it (a) refused
to give the pattern charge on grave suspicion and (b) overruled his objection to the
prior difficulties charge. We disagree.
(a) Here, the victim gave extensive testimony of the attacks, which amounted
to direct evidence of the abuse and thus “raised more than a bare suspicion” of
Sarmiento-Naranjo’s guilt. (Citation and punctuation omitted.) Welch v. State, 309
Ga. 875, 879 (3) (848 SE2d 846) (2020). “Furthermore, the trial court gave complete
instructions on reasonable doubt and presumption of innocence.” (Citation omitted.)
Id. Consequently, the trial court did not err by refusing to give the requested charge
on grave suspicion. Id. (no error in refusal to give a charge on grave suspicion in light
of the trial testimony amounting to “direct evidence” of the crime and the
completeness of instructions on “reasonable doubt and presumption of innocence”).
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(b) “Proof of prior difficulties between the defendant and victim – including
prior acts of molestation – is admissible without notice or a hearing.” (Citation and
punctuation omitted.) Rayner v. State, 307 Ga. App. 861, 864 (1) (706 SE2d 205)
(2011). The trial court charged the jury as follows:
Evidence of prior difficulties or lack thereof, between the defendant and
the alleged victim or witness, has been admitted for the sole purpose of
illustrati[ng], if it does, the state of [feeling] between the defendant and
the alleged victim or witness. Whether this evidence illustrates such
matters is a matter solely for you the jury to determine. But you are not
to consider such evidence for any other purpose.
There was ample evidence here to justify the giving of the charge, including evidence
of Sarmiento-Naranjo’s developing habit of sleeping in the victim’s bed with the
victim prior to any sexual abuse. The victim testified that she remembered feeling
uncomfortable when her father came into her bedroom and got on the bed with her.
The victim also testified that it made her uncomfortable when her father would make
her lie on top of him on the couch “stomach to stomach” while the family watched
movies. In addition, evidence was presented at trial that Sarmiento-Naranjo had
inappropriate conversations with the victim about orgasms. “Thus, by giving the
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charge, the trial court was not commenting on the evidence nor was the charge
unsupported by the evidence[,]” and, consequently, there was no error. Id.
2. Sarmiento-Naranjo also contends that the trial court erred when it allowed
the examining nurse to testify that the mother told her that her daughter “had been
raped” on the ground that it was admissible to explain the nurse’s course of conduct.
As the State argues, however, the statement was offered to prove not “the truth of the
matter asserted” (OCGA § 24-8-801 (c)) – i.e., that the daughter had actually been
raped – but rather to explain why the nurse performed a specific type of examination.
As such, the mother’s statement was not hearsay, and there was no error. See Carter
v. State, 302 Ga. 200, 204 (2) (b) (805 SE2d 839) (2017) (“[A]n out-of-court
statement is not hearsay if it is offered for some purpose other than to prove the truth
of the matter asserted.”).
Judgment affirmed. Miller, P. J., and Pipkin, J., concur.
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