SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
June 3, 2020
In the Court of Appeals of Georgia
A20A0425. LOPEZ v. THE STATE.
MILLER, Presiding Judge.
A Chatham County jury found Jason Andrew Lopez guilty of two counts of
family violence battery and two counts of family violence simple battery, and the trial
court sentenced him to 48 months in prison. Lopez appeals from the trial court’s order
denying his motion for new trial, arguing that (1) the trial court erred by admitting
hearsay testimony at trial; (2) the trial court erred by admitting evidence of prior
difficulties into evidence at trial; (3) the evidence was insufficient to sustain his
convictions; and (4) the trial court erred by failing to merge his convictions. We
conclude that the trial court did not err by admitting alleged hearsay evidence at trial,
the trial court did not commit plain error by admitting evidence of prior difficulties,
and that the evidence was sufficient to sustain Lopez’s convictions. We conclude,
however, that the trial court erred by failing to merge Lopez’s convictions. We
therefore affirm in part and vacate in part, and remand the case to the trial court for
resentencing.
Viewed in the light most favorable to the verdicts,1 on February 3, 2017,
Patrick Wygal was at the courtyard of a hotel on an army base with two other
individuals. According to Wygal, at around 4 a.m., Mallory, Lopez’s wife, was being
chased by a “big naked dude” later identified as Lopez. Mallory ran up to Wygal and
told him that Lopez had hit her and that her tooth had chipped. Wygal and another
individual chased after Lopez, and he told them that he had gotten into a dispute with
Mallory.
Mallory spoke with a police officer who responded to the hotel and told him
that she and Lopez had been fighting. She said that during the fight Lopez hit her
legs, grabbed her by the arms, and pushed her down on to the bed. She also said that
Lopez “held her down by the top of her chest to her throat and then began to hit her
in the face” until she “tasted blood.” She said that Lopez then got off of her, at which
time she ran to the hotel lobby area. Mallory did not testify at trial, but photographs
of her injuries were entered into evidence at trial.
1
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
In a four-count accusation, Lopez was charged with two counts of family
violence battery (OCGA § 16-5-23.1 (f)), and two counts of family violence simple
battery (OCGA § 16-2-23 (f)). The jury found Lopez guilty of all counts, and the trial
court sentenced Lopez to 48 months in prison. Lopez filed a motion for new trial,
which the trial court denied. This appeal followed.
1. First, Lopez argues that the trial court erred by admitting into evidence
statements made by Mallory under the forfeiture by wrongdoing exception to the
hearsay rule. We conclude that the trial court properly admitted Mallory’s statements
into evidence.
“We review a trial court’s ruling on an evidentiary question only for an abuse
of discretion.” Almeda v. State, 348 Ga. App. 576, 577 (1) (824 SE2d 72) (2019).
The Sixth Amendment to the United States Constitution provides
that in all criminal prosecutions, the accused shall enjoy the right to be
confronted with the witnesses against him. This clause applies to
witnesses against the accused—in other words, those who bear
testimony and, consistent with the framers’ original understanding,
testimonial statements of witnesses absent from trial have been admitted
only where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine.
3
(Citations and punctuation omitted.) Brittain v. State, 329 Ga. App. 689, 693-694 (2)
(a) (766 SE2d 106) (2014). Nevertheless, “notwithstanding a criminal defendant’s
Sixth Amendment right to confront the witnesses against him, the common-law
doctrine of forfeiture by wrongdoing permits the introduction of statements made by
a witness who has been detained or kept away by the means or procurement of the
defendant.” (Citation and punctuation omitted.) Id. at 694 (2) (a). Rephrased, “[o]ne
who obtains the absence of a witness by wrongdoing forfeits the constitutional right
to confrontation.” (Citation omitted.) Hendrix v. State, 303 Ga. 525, 528 (2) (813
SE2d 339) (2018). Hence, OCGA § 24-8-804 (b) (5) provides: “The following shall
not be excluded by the hearsay rule if the declarant is unavailable as a witness: . . .
A statement offered against a party that has engaged or acquiesced in wrongdoing
that was intended to, and did, procure the unavailability of the declarant as a witness.”
“To admit a statement against a defendant under the rule of forfeiture-by-wrongdoing,
the government must show (1) that the defendant engaged or acquiesced in
wrongdoing, (2) that the wrongdoing was intended to procure the declarant’s
unavailability, and (3) that the wrongdoing did procure the unavailability.” (Citation
and punctuation omitted.) Hendrix, supra, 303 Ga. at 528 (2). “If, as supported by a
preponderance of the evidence, a trial court finds that a party has acted with the
4
purpose of making a witness unavailable to testify against him, a trial court does not
abuse its discretion in allowing the unavailable witness’s statements to be admissible
at trial against the party who caused the witness’s absence.” Id.
Here, after Mallory failed to appear for trial, the State sought to admit into
evidence several statements made by Mallory to police and other witnesses on the
night of the incident, in addition to statements made by Mallory during jail calls with
Lopez in which she recounted the details of the incident. In support of its motion, the
State presented testimony from an investigator who testified that Mallory had been
served with a subpoena to appear for trial. While serving Mallory with the subpoena,
Mallory told the investigator that “her blood would be on her hands,” that she would
not attend the trial, and that she would rather be jailed. The State also entered into
evidence recordings of jail calls between Mallory and Lopez which were made after
his arrest. In one call, Lopez repeatedly told Mallory that the State would not be able
to proceed against him if she did not cooperate with the prosecution. In that same call,
Lopez told Mallory that “just because they subpoena you doesn’t mean you have to
show up[,]” and that she would not be arrested if she did not appear and testify at
trial. Lopez also told Mallory that he hoped she came to court so that he could spit in
her face.
5
We conclude that all three factors were proven by a preponderance of the
evidence to admit Mallory’s statements into evidence under the forfeiture by
wrongdoing rule. First, Lopez engaged in wrongdoing by pressuring Mallory with the
notion that she did not have to comply with the subpoena to appear for trial and by
repeatedly telling her that the State would not be able to proceed with the case
without her. See Hendrix, supra, 303 Ga. at 529 (2) (holding that the defendant
engaged in wrongdoing by instructing the victim not to cooperate with the State).
Second, Lopez’s wrongdoing was intended to procure Mallory’s unavailability
because he repeatedly told her that the State would not be able to proceed with the
case against him if she did not cooperate. See Hendrix, supra, 303 Ga. at 529 (2)
(holding that the defendant intended to procure the witness’s unavailability by
commanding the witness not to cooperate with the State). Finally, Lopez’s
wrongdoing did procure Mallory’s unavailability because, although under subpoena,
Mallory did not appear for trial. See Hendrix, supra, 303 Ga. at 529 (2) (holding that
the defendant procured the witness’s unavailability because the witness stopped
cooperating with the State after being threatened by the defendant). Because a
preponderance of the evidence showed that Lopez engaged in wrongdoing intended
to procure Mallory’s unavailability, and that wrongdoing did actually cause her
6
unavailability, the trial court did not abuse its discretion by admitting Mallory’s
statements under the forfeiture by wrongdoing rule. See id. (holding that the trial
court did not err by admitting the witness’s statements under the forfeiture by
wrongdoing rule where all three factors for admissibility were established by a
preponderance of the evidence).
2. Second, Lopez argues that the trial court erred by admitting evidence of three
prior difficulties involving Mallory into evidence at trial. We conclude that the
evidence was properly admitted.
As a preliminary matter, this enumeration of error was not preserved for
appellate review. Although Lopez argues that this claim was preserved by a
“continuing objection” at trial and by the filing of a motion for new trial, Lopez’s
continuing objection was a hearsay objection made in reference to the trial court’s
forfeiture by wrongdoing ruling. Lopez, however, did not raise an objection to the
admissibility of the prior difficulties evidence at trial, and raising this argument in the
motion for new trial did not preserve it for appellate review. Anthony v. State, 302 Ga.
546, 549 (II) (807 SE2d 891) (2017) (“In order to preserve an objection for appellate
review, the specific ground of the objection must be made at the time the challenged
evidence is offered.”) (citation omitted). Therefore, we review this enumeration for
7
plain error only. See Perez v. State, 331 Ga. App. 164, 166-167 (1) (770 SE2d 260)
(2015) (applying plain error review to the defendant’s claim that the trial court erred
by admitting prior bad acts into evidence at trial). To show plain error,
first, there must be an error or defect — some sort of deviation from a
legal rule — that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the error
— discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.
(Citation and punctuation omitted.) Chitwood v. State, 352 Ga. App. 218, 225-226 (3)
(b) (834 SE2d 334) (2019). OCGA § 24-4-404 (b) provides:
Evidence of other crimes, wrongs, or acts shall not be admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
8
Here, Lopez challenges the admission of testimony regarding three prior
difficulties involving Mallory. In the first incident, the State presented testimony from
an officer that on March 19, 2016, he observed Mallory holding the right side of her
face as she lay on the ground and that Mallory told him that Lopez had punched her
in the face. In the second incident which occurred on November 9, 2015, a witness
testified that he observed Lopez remove Mallory from a vehicle and put her on the
ground and position himself on top of her. As to the third incident, which occurred
on December 31, 2016, an officer testified that he responded to a bar in relation to a
domestic disturbance and met with Mallory, and that Mallory told him that she and
Lopez had gotten into an argument, and that as she sat in her car, Lopez got inside,
put his knee on her thigh, and punched her in the face. The trial court admitted the
evidence regarding the three prior difficulties and instructed the jury that it could
consider the evidence as it related to “the state of feelings” between Mallory and
Lopez and the reasonableness of any fears Mallory or Lopez might have had.
Pretermitting whether evidence of the three prior difficulties was admissible
to show the state of feelings between Mallory and Lopez, we conclude that Lopez
cannot affirmatively show that the alleged errors probably affected the outcome at
trial. The State presented evidence from multiple witnesses who testified that Mallory
9
said that Lopez hit her in the face and on her legs, and photographs showing
Mallory’s injuries were entered into evidence for the jury’s consideration. Therefore,
in light of the overwhelming evidence of Lopez’s guilt for the offenses, “it cannot be
said that any error in the admission of this other evidence likely affected the outcome
below.” Gates v. State, 298 Ga. 324, 328 (3) (781 SE2d 772) (2016).
3. Lopez further argues that the evidence was insufficient to support his
convictions. We disagree.
On appeal from a criminal conviction, we view the evidence in the light
most favorable to the verdict and an appellant no longer enjoys the
presumption of innocence. This Court determines whether the evidence
is sufficient under the standard of Jackson v. Virginia, and does not
weigh the evidence or determine witness credibility. Any conflicts or
inconsistencies in the evidence are for the jury to resolve. As long as
there is some competent evidence, even though contradicted, to support
each fact necessary to make out the State’s case, we must uphold the
jury’s verdict.
(Citations omitted.) Harvey v. State, 344 Ga. App. 761, 763 (811 SE2d 479) (2018).
(a) Family Violence Battery
A defendant commits the offense of battery when he intentionally causes
substantial physical harm or visible bodily harm to another. . . . [T]he
term “visible bodily harm” means bodily harm capable of being
10
perceived by a person other than the victim and may include, but is not
limited to, substantially blackened eyes, substantially swollen lips or
other facial or body parts, or substantial bruises to body parts. And when
a defendant commits the offense of battery against a spouse or other
family member, then the offense constitutes family-violence battery.
(Citations and punctuation omitted.) Futch v. State, 316 Ga. App. 376, 379 (1) (a)
(730 SE2d 14) (2012).
Here, Count 1 of the accusation alleged that Lopez committed family violence
battery in that he caused visible bodily harm to Mallory in the form of her chipped
tooth. Count 2 alleged that Lopez committed family violence battery in that he caused
visible bodily harm to Mallory due to her swollen eye. The State presented evidence
from Wygal who testified that Mallory told him that Lopez had hit her and that her
tooth had been chipped. An officer who responded to the hotel and met with Mallory
also testified that Mallory told him that Lopez had hit her and that she suffered a
chipped tooth when he hit her. The officer testified that he observed and
photographed the chipped tooth. The officer also testified that he photographed
Mallory’s injured eye. We conclude that this evidence was sufficient to sustain both
of Lopez’s convictions for battery, family violence.
(b) Family Violence Simple Battery
11
A person commits the offense of simple battery when he or she either:
(1) Intentionally makes physical contact of an insulting or provoking
nature with the person of another; or (2) Intentionally causes physical
harm to another. When a person commits the offense of simple battery
against a spouse, child or other family member, the offense constitutes
family violence simple battery.
(Citations omitted.) Onyekwe v. State, 332 Ga. App. 267, 268 (1) (772 SE2d 64)
(2015).
Here, Count 3 of the accusation alleged that Lopez committed family violence
simple battery by striking Mallory’s leg. Count 4 of the accusation alleged that Lopez
committed family violence simple battery by grabbing Mallory by the throat. The
State presented evidence from an officer who testified that Mallory told him that
Lopez hit her legs and that he held her down with his hands around her neck. We
conclude that this evidence was sufficient to sustain both of Lopez’s convictions, and
therefore the trial court properly denied Lopez’s motion for new trial on this basis.
4. Lastly, Lopez argues that the trial court erred by failing to merge three of his
convictions into one conviction for family violence battery. We agree.
12
“Whether offenses merge is a legal question, which we review de novo.”
(Citation and punctuation omitted.) Fordham v. State, 352 Ga. App. 520, 526 (3) (835
SE2d 360) (2019).
The doctrine of merger precludes the imposition of multiple punishments when
the same conduct establishes the commission of more than one crime.” (Citation
omitted.) Fordham, supra, 352 Ga. App. at 526 (3). “For separate offenses charged
in one indictment to carry separate punishments, they must rest on distinct criminal
acts. If they were committed at the same time and place and were part of a continuous
criminal act, and inspired by the same criminal intent, they are susceptible of only one
punishment.” (Citations omitted.) Lucas v. State, 328 Ga. App. 741, 742-743 (1) (760
SE2d 257) (2014).
Here, Count 1 charged Lopez with family violence battery based upon his act
of chipping his wife’s tooth, Count 2 charged Lopez with family violence battery
based on his wife’s swollen eye, Count 3 charged Lopez with family violence simple
battery based on Lopez’s act of striking his wife’s leg, and Count 4 charged Lopez
with family violence simple battery based on Lopez’s act of grabbing his wife by the
throat. In Mallory’s statements to police about the incident, she said that she and
Lopez had been fighting, and that during the fight Lopez hit her legs, grabbed her by
13
the arms, and pushed her down on the bed. She also said that Lopez “held her down
by the top of her chest to her throat” and that he then hit her in the face. Mallory also
told another witness that she suffered a chipped tooth during the fight. Therefore,
although Mallory suffered different injuries for each battery and simple battery
offense, because the offenses were part of a continuous criminal act, committed at the
same time and place and inspired by the same criminal intent, the trial court erred by
failing to merge Lopez’s convictions for Count 2, Count 3, and Count 4 of the
indictment into his conviction for Count 1. See Gomez v. State, 301 Ga. 445, 455-456
(4) (b) (801 SE2d 847) (2017) (holding that defendant’s convictions for two counts
of aggravated assault merged where, although one count was based on hemorrhages
of the victims eyes and brain and the other was based on the victim’s skull fracture,
there was no evidence of a “deliberate interval” but were instead a part of the same
continuous act); Thompson v. State, 291 Ga. App. 355, 360-361 (5) (662 SE2d 135)
(2008) (holding that two counts of battery, one for hitting the victim in the mouth and
one for hitting the victim in the eye, merged into one where there was no evidence of
“two completed exchanges separated by a meaningful interval of time or with distinct
intentions”).
14
In sum, although we affirm the jury’s verdicts, the trial court erred by failing
to merge Lopez’s convictions and we therefore vacate the convictions of family
violence battery (Count 2), family violence simple battery (Count 3), and family
violence simple battery (Count 4), and we remand the case to the trial court for
resentencing.
Judgment affirmed in part and vacated in part and case remanded for
resentencing. Mercier and Coomer, JJ., concur.
15