State v. GarciaState v. Garcia
APPEARANCES:
Esteban R. Callejas for Appellant
Todd C. Schroeder for Appellee
{¶1} Defendant-Appellant, Jaimie Garcia, aka Jaime Garcia (hereinafter, “Garcia” or “Uncle Jaime“), appeals the judgment of the Putnam County Court of Common Pleas after a jury found him guilty of twelve counts of gross sexual imposition and one count of rape. On appeal, Garcia contends that the trial court erred when it allowed incоmpetent juvenile witnesses to testify; when it sentenced him to maximum consecutive sentences; when it failed to ensure a representative sample of Hispanic Americans in the jury pool; and, he also claims he was denied effective assistance of counsel. For the reasons set forth below, the judgment is affirmed.
{¶2} On March 4, 2011, the Putnam County Grand Jury indicted Garcia on sixteen counts of gross sexual imposition, each in violation of
{¶3} A three-day jury trial was held, beginning on May 31, 2011. The jury heard testimony from the six alleged victims of the sexual abuse, from some of the children‘s parents/guardians, from two of the children‘s counselors, and from the Van Wert County Children‘s Services social worker who investigated the alleged abuse and who had interviewed several of the children after the disclosure of the abuse.
{¶4} Garcia and his wife had a son and two daughters, and they had a large, extended family with several nieces who were close in age to their own daughters. The nieces would often spend entire weekends with the Garcia family so that the girls could play together.
{¶5} At the time of trial in 2011, niece S.A. was nearly 10 years old, and her sister O.A. wаs 8-1/2 years old. They both testified that they regularly visited Uncle Jaime‘s house, often every month or even more frequently, during 2007, 2008, 2009, and 2010. They testified that Uncle Jamie would touch and rub their “boobs,” their “private place” (their word for vagina), and their “butts,” both over
{¶6} Although the girls testified that these acts occurred too many times to count, the State only charged Garcia with one count of gross sexual imposition for each child for each year during which the abuse occurred: Counts 1, 3, 5, and 8 for S.A.; Counts 2, 4, 6, and 9 for O.A.; and Count 10 for K.F.. O.A. also alleged that Garcia had put his finger inside her “butt” one time in 2009, resulting in Count 7 for rape. Garcia had repeatedly warned the children not to tell anyone.
{¶7} After the investigation began, and when the other members of the family learned of what had occurred, the other aunts asked their daughters if anyone had ever done anything inappropriate. Three more victims admitted that Uncle Jaime had sexually abused them.
{¶8} S.L., who was 14 at the time of the trial, testified that she had also spent many weekends with her cousins at the Garcia home, ever since 2006. S.L. testified to the same sexual fondling that had occurred with S.A. and O.A.. Again,
{¶9} C.A., who was also 14 at the time of trial, testified that when she was 5 years old in 2002, she visited her cousins and stayed at the Garcia home three or four times. She testified about how Garcia would take her into the bathroom and lock the door and how he would “make me suck his penis.” (Tr. p. 659). She described the forced oral sex that occurred at least three times, and testified that he had threatened to hurt her if she told anyone. (Tr. p. 651) C.A. and her family moved to Arkansas shortly thereafter, so she did not spend any more time alone with Uncle Jaimie. Her allegations resulted in Count 12 for rape.
{¶10} And finally, Garcia‘s sister-in-law, P.A., testified that when she was a young child in the 1980‘s and Garcia was dating her sister, she was awakened one night by Garcia standing over her with his mouth on her pre-pubescent breast. P.A. told her mother the next day, but nothing was ever done. She never told anyone, except for her husband, until these allegations came to light. This was Count 11 for gross sexual imposition.
{¶11} The defense called Jonathan Morse, the Youth Pastor for Garcia‘s church, to testify as a character witness for Garcia. Mr. Morse had known Garcia for a couple years, and he testified that Garcia had always been willing to help out with the youth grоup activities and chaperoning. Mr. Morse had never seen
{¶12} And finally, Garcia testified in his own defense. He denied that any of the incidents had occurred and completely maintained his innocence.
{¶13} After deliberations, the jury found Garcia guilty of 13 of the 16 counts. The jury found Garcia not guilty of Count 7 (raрe of O.A.), Count 10 (gross sexual imposition of the young nephew, K.F.), and Count 11 (gross sexual imposition of P.A.).
{¶14} On June 6, 2011, the trial court sentenced Garcia to the maximum five year sentence for each of the twelve counts of gross sexual imposition, to run consecutively. Garcia was sentenced to life imprisonment for the remaining count of rape, to run consecutively and to begin after the expiration of the sixty years of imprisonment for the sentences for gross sexual imposition.
{¶15} It is from this judgment that Garcia now appeals, raising the following four assignments of error for our review.
First Assignment of Error
The trial court committed reversible error in allowing two incompetent, minor witnesses to testify as to acts that were highly prejudicial to [Garcia].
Second Assignment of Error
The maximum sentence is reserved for the worst offenders, and should not have been given in the case at bar
The trial court failed to ensure a representative sample of Hispanic Americans in the jury pool, in violation of the U.S. Constitution 6th Amendment, which guarantees the right to a jury trial by peers.
Fourth Assignment of Error
Garcia did not receive effective assistance of counsel.
First Assignment of Error – Competency of Minor Witnesses
{¶16} In the first assignment of error, Garcia complains that two of the young witnesses, should have been found incompetent to testify. Garcia had requested a competency hearing for the three children who were under the age of ten at the time of trial, S.A., age 9, O.A., age 8, and K.F., age 6. He claims that the answers given at the competency hearing by two of the children, O.A. and K.F., demonstrated that the trial court abused its discretion when it found them competent to testify.
{¶17}
{¶18} A competency hearing was held on April 27, 2011, and the trial court questioned the children extensively on various tоpics, including their ages, where they lived, their schooling, their family, their purpose in being in the courtroom, the importance of telling the truth, the difference between the truth and a lie, and the consequences of telling a lie. (Apr. 27, 2011 Tr., pp. 10-68) The trial court also questioned each child as to the allegations that they were making, about what Garcia had done to them, whether what they were saying about Garcia was the truth, and whether they had been told what to say by someone. Based upon this detailed voir dire process, the trial court found all three of the children competent to testify.
{¶19} Our review of the record finds that the answers the children provided were clear, accurate, consistent, and met all of the requirements of the criteria set forth in Frazier. O.A.‘s answers were extremely accurate and straightforward.
Q. Did [the prosecutor] tell you what to say?
A. No.
Q. Okay. What did [the prosecutor] tell you about coming in and talking to me or what you should say, do you remember? Did he tell yоu anything?
A. Yeah.
Q. What did he tell you?
A. To be brave.
Q. Pardon?
A. To be brave.
Q. To be brave, okay. Did he tell you anything else?
A. Just to tell the truth.
Q. To tell the truth, okay. And did you tell the truth to [the prosecutor]?
A. Yes.
Q. And are you telling the truth today?
A. Yes.
(Id. at pp. 46-47)
{¶21} We do not find that the trial court abused its discretion when it found that K.F. was competent to testify. In any case, even if it would have been error to allow K.F.‘s testimony, the issue was moot because the jury found Garcia not guilty of the single count involving K.F. and his testimony. K.F.‘s testimony considering the touching was definite, consistent, and corroborated by his two step-sisters. However, there was some discrepancy as to whether it oсcurred in the spring or the fall, and the jury returned a “not guilty” verdict. K.F. did not testify as to any of the other counts, so his testimony did not involve any prejudice.
{¶22} O.A.‘s answers, both at the competency hearing and at trial, were consistently sure, clear and consistent. Furthermore, O.A.‘s disclosure of what Garcia had done to her was also before the trial court in testimony from her custodial grandmother, her counselor, and her sister. Therefоre, even without O.A.‘s testimony, the jury would have heard the evidence of Garcia‘s sexual abuse.
Second Assignment of Error-- Sentencing
{¶24} Garcia asserts that
{¶25} Ever since the Ohio Supreme Court‘s ruling in State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, “trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, ¶ 37. In Foster, the Ohio Supreme Court “excised as unconstitutional
{¶26} Courts, nevertheless, arе still required to comply with the sentencing laws unaffected by Foster, such as
{¶27}
{¶28} Garcia‘s basis for this assignment of error cites to statutes that are no longer the law in Ohio. And, although not required to make any “findings,” the trial court did discuss the reasons why it imposed the sentences that it did, stating
{¶29} The record demonstrates that the trial court fully complied with all of the applicable statutory requirements pertaining to the imposition of Garcia‘s sentences. The second assignment of error is overruled.
Third Assignment of Error – Jury Pool
{¶30} In this assignment of error, Garcia alleges that the trial court failed to ensure a representative sample of Hispanics in the jury pool, which he asserts is a violation of his Sixth Amendment rights to have a jury drawn from a representative cross-section of the community. Garcia states that all 47 members of the jury pool were Caucasian and none were Hispanic. Garcia complains that he “had no opportunity to cross examine the Court as to its jury selection process” but now asserts that the jury selection process “was not random, was flawed, and
{¶31} The “selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Thus, “the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community.” Id. at 538. However, there is “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population,” nor is there any right to “a jury of any particular composition.” Id. “The Sixth Amendment guarantees only the opportunity for a representative jury, not a representative jury itself. * * * The focus, therefore, is properly placed on the procedure of selecting juries, not on the outcome of that process.” Phillips v. Value City Stores, Inc. (Sept. 16, 1997), Franklin App. No. 96APE12–1711, 1997 WL 578950, at *6.
{¶32} Four years after the Taylor decision, the United States Supreme Court established a three-part test to demonstrate a prima facie violation of the fair cross-section requirement: (1) the defendant must show that the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in
{¶33} Ohio‘s statutory scheme for the selection of jurors is based upon the principle that qualified jurors will be selected in a random manner. See
{¶34} Garcia has not provided any evidence, facts, or statistics to support any of his bare assertions. Garcia did not attempt to establish that the Hispanic population is a “distinctive” group in Putnam County. Even if we were to concede this first prong, Garcia failed to present any statistical data which would support his claim that the jury composition was not representative of the population as a whole. Lastly, Garcia failed to provide any evidence that there has been a systematic exclusion of Hispanics from the jury-selection process. See State v. Stockton, 3d Dist. No. 17-96-15, 1997 WL 232245; State v. Hairston, 9th Dist.
{¶35} In Fulton, the Ohio Supreme Court further stated that:
“[a] defendant may also reasonably bring a federal equal protection challenge to the selection and composition of the petit jury by adducing statistical evidence which shows a significant discrepancy between the percentage of a certain class of people in the community and the percentage of that class on the jury venires, which evidence tends to show discriminatory purpose, an essential element of such cases.” Fulton, 57 Ohio St.3d at 123-24.
{¶36} Again, Garcia did not provide any statistical data to show the “underrepresentation [of a distinct group] over a significant period of time” or “expose[ ] the selection procedure as susceptible of abuse or racially partial.” State v. McNeill, 83 Ohio St.3d 438, 444 (1998), citing Fulton, 57 Ohio St.3d at 122-24. Accordingly, any claimed challenge under the Fourteenth Amendment also fails.
{¶37} Garcia has failed to support his argument with any statistical data or facts, whatsoever. The third assignment of error is overruled.
Fourth Assignment of Error – Ineffective Assistance of Counsel
{¶38} In the final assignment of error, Garcia claims his counsel‘s representation fell below an objective standard of reasonableness when counsel failed to object to a jury which “was not properly selected and failed to produce any Hispaniсs.” (Appellant‘s Br., p. 15) He claims that had counsel objected and
{¶39} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representatiоn, and (2) prejudice, i.e., a reasonable probability that but for counsel‘s errors, the proceeding‘s result would have been different. Strickland v. Washington, 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. There is a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance, and that strategy and tactical decisions exercised by defense counsel are well within the range of professionally reasonable judgment and need not be analyzed by a reviewing court. State v. Robinson, 108 Ohio App.3d 428 (3d Dist.1996).
{¶40} As our disposition of the third assignment of error indicated, there was no evidence of any error in the selection of the jury pool, so there was no valid reason for counsel to raise an objection. Therefore, counsel was not ineffective for failing to object. Furthermore, Garcia‘s’ statement alleges that hе would not have been convicted if he “would have received a fair trial.” However, he does not present any evidence or arguments that would indicate that this trial was not fair in every way, or why a different jury would have reached a different
{¶41} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr