FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, 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.
September 4, 2020
In the Court of Appeals of Georgia
A20A1502. SOLIS-MACIAS v. THE STATE.
DILLARD, Presiding Judge.
Following trial, a jury convicted Rosalino Solis-Macias on one count of sexual
battery and five counts of child molestation. On appeal, Solis-Macias contends that
the trial court erred in admitting video from a law-enforcement officer’s body-camera,
denying his motion to suppress his custodial statement, and refusing to give a jury
instruction on sexual battery as a lesser-included offense of child molestation. For the
reasons set forth infra, we affirm Solis-Macias’s convictions.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that in 2018, Solis-Macias was married to Ingrid Solis, and the two of them lived in
a duplex with their five-year-old son, as well as Ingrid’s two other children from a
1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
previous marriage—thirteen-year-old son, D. B., and eight-year-old daughter, Y. B.
On May 10, 2018, Ingrid disciplined Y. B. for using a cell phone when she was not
allowed to do so. This decision upset Y. B., and she complained to her mother that
she wanted to go live with her biological father. And when pressed by her mother as
to why she was so upset, Y. B. disclosed that Solis-Macias inappropriately kissed her
and made her touch his penis. Solis-Macias initially denied acting inappropriately, but
the next morning, after he went to work, Ingrid sent him a text message, again asking
if Y. B.’s disclosure was true. This time, he admitted that Y. B. was telling the truth
and apologized for his actions.
Immediately thereafter, Ingrid called the police, and Athens-Clarke County
police officer Robert Britt arrived at their apartment a short time later. Officer
Britt—who was wearing a body-camera—began questioning Solis-Macias, and
although English was seemingly not Solis-Macias’s native language, he understood
the officer’s questions and admitted that he touched Y. B.’s privates on several
occasions. Officer Britt then transported Solis-Macias to the police station, at which
point Officer Laila Schuler conducted a custodial interview. At the start of the
interview, Officer Schuler—who was born in Mexico and is fluent in Spanish—read
2
Solis-Macias his Miranda rights2 in English from a card and then summarized those
rights in Spanish. Solis-Macias indicated that he understood those rights and agreed
to speak with Officer Schuler without an attorney present. And during the course of
this interview, Solis-Macias admitted that he touched Y. B.’s vagina on four separate
occasions and made her touch his penis on one occasion. In addition, Solis-Macias
informed Officer Schuler that he told Y. B. not to tell her mother about his actions.
That same day, May 11, 2018, a forensic interviewer with a local child
advocacy center met with Y. B. And during the interview, which was recorded, Y. B.
was initially reluctant to disclose what Solis-Macias had done to her. But she
eventually explained—via a written note—that at some point after she turned seven
years-old, Solis-Macias began sexually abusing her. Specifically, Solis-Macias told
Y. B. that he wanted to be her boyfriend and would stick his tongue in her mouth and
touch her privates. Additionally, on the same day as the interview, a sexual-assault
nurse examiner performed a physical examination on Y. B., during which Y. B. again
disclosed the details of Solis-Macias’s actions.
Thereafter, the State charged Solis-Macias, via indictment, with one count of
aggravated sexual battery and five counts of child molestation. The case then
2
See Miranda v. Arizona, 384 U.S. 436 (86 SCt. 1602, 16 LE2d 694) (1966).
3
proceeded to trial, during which the State presented the foregoing evidence. In
addition, Y. B. testified, and the State played the video from Officer Britt’s body-
camera, as well as the video of Y. B.’s forensic interview. Then, at the conclusion of
the trial, the jury found Solis-Macias guilty of sexual battery as a lesser-included
offense of the aggravated sexual battery charge in Count 1 and guilty of the separate
child-molestation charges in Counts 2 through 6. Subsequently, Solis-Macias filed
a motion for new trial, which the trial court denied. This appeal follows.
1. Solis-Macias first contends that the trial court erred in admitting the video
from Officer Britt’s body-camera into evidence, arguing that doing so violated the
prohibition against recording a person without their consent as provided for in OCGA
§ 16-11-62 (2).3 We disagree.
3
Although Solis-Macias has not challenged the sufficiency of the evidence
supporting his convictions, we have reviewed the record and find the evidence
sufficient to enable a jury to conclude beyond a reasonable doubt that he was guilty
of all the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (“Once a defendant has been found
guilty of the crime charged, the factfinder’s role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is
to be considered in the light most favorable to the prosecution.”).
4
As a general rule, admission of evidence is “a matter resting within the sound
discretion of the trial court, and appellate courts will not disturb the exercise of that
discretion absent evidence of its abuse.”4 We find no abuse of that discretion here.
Turning to the specific claim at issue, when he arrived at the family’s apartment
to investigate Y. B.’s disclosure, Officer Britt was wearing a body-camera, which
recorded his encounter with Solis-Macias and his wife. And when asked if he sought
Solis-Macias or his wife’s consent to record this interaction, Officer Britt responded
that he did not. Solis-Macias then objected to the recording’s admission, but the trial
court overruled his objection, and the State then played the recording for the jury.
On appeal, Solis-Macias argues that Officer Britt’s body-camera recording of
his investigation and the admission of that recording into evidence was prohibited by
OCGA § 16-11-62 (2), which provides that “[i]t shall be unlawful for . . . [a]ny
person, through the use of any device, without the consent of all persons observed,
to observe, photograph, or record the activities of another which occur in any private
place and out of public view . . . .” But subsection (D) of this same statute provides
“that it shall not be unlawful . . . [f]or a law enforcement officer or his or her agent
4
Adams v. State, 316 Ga. App. 1, 3 (1) (728 SE2d 260) (2012) (punctuation
omitted); accord Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449 (2010).
5
to use a device in the lawful performance of his or her official duties to observe,
photograph, videotape, or record the activities of persons that occur in the presence
of such officer or his or her agent . . . .”5 And with specific regard to subsection (D),
the Supreme Court of Georgia has noted that
to the extent that OCGA § 16-11-62 (2) could have been construed to
apply to the actions of police officers making video recordings of others
without their consent after being invited into someone’s home, the
legislature made clear through a 2015 amendment to OCGA § 16-11-62
(2) that police do not have to obtain the consent of all parties being
video recorded in a private place and outside of the public view when
they record such persons in connection with their duties as police
officers.6
And in this case, given that it is undisputed Officer Britt was recording his interaction
with Solis-Macias and his wife as part of his official duties, the recording was not
prohibited by OCGA § 16-11-62 (2).7 Accordingly, the trial court did not abuse its
discretion in admitting the recording into evidence.
5
OCGA § 16-11-62 (2) (D).
6
State v. Cohen, 302 Ga. 616, 630 (2) (b) n.13 (807 SE2d 861) (2017); see Ga.
L. 2015, § 2.
7
See Cohen, 302 Ga. at 630 (2) (b) n.13.
6
2. Solis-Macias also maintains that the trial court erred in denying his motion
to suppress his custodial statement. Again, we disagree.
When a trial court rules upon the admissibility of a custodial statement
following a Jackson-Denno8 hearing, it must determine whether, “based upon the
totality of the circumstances, a preponderance of the evidence demonstrates that the
statement was made freely and voluntarily.”9 And when the facts material to a motion
to suppress are disputed, it “generally is for the trial judge to resolve those disputes
and determine the material facts.”10 In fact, our Supreme Court has identified three
corollaries of this principle, which “limit the scope of review in appeals from a grant
or denial of a motion to suppress in which the trial court has made express findings
of disputed facts.”11 First, appellate courts generally must “accept those findings
8
See Jackson v. Denno, 378 U.S. 368 (84 SCt. 1774, 12 LE2d 908) (1964).
9
Bell v. State, 284 Ga. 790, 794 (2) (671 SE2d 815) (2009) (punctuation
omitted); accord Gunn v. State, 342 Ga. App. 615, 622 (2) (804 SE2d 118) (2017);
see Vergara v. State, 283 Ga. 175, 176 (657 SE2d 863) (2008) (explaining that the
trial court determines the admissibility of a defendant’s statement under the
preponderance of the evidence standard considering the totality of the circumstances).
10
Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015); accord Pena
v. State, 297 Ga. 418, 421 (3) (774 SE2d 652 (2017).
11
Hughes, 296 Ga. at 746 (1) (punctuation omitted); accord Pena, 297 Ga. at
421 (3).
7
unless they are clearly erroneous.”12 Second, we must construe the evidentiary record
“in the light most favorable to the factual findings and judgment of the trial court.”13
And third, we generally must limit our consideration of the disputed facts to “those
expressly found by the trial court.”14
In this matter, just prior to Officer Schuler’s testimony, the trial court
conducted a Jackson-Denno hearing. And during that hearing, Officer Schuler—who
was born in Mexico and considers Spanish her native language—testified that she
first read Solis-Macias his Miranda rights in English, verbatim, from a card and then
summarized those rights for him in Spanish. Officer Schuler also explained that, as
part of that summary, she explained to Solis-Macias that he did not have to speak
with her and he could have a lawyer if he wanted one. She further testified that she
believed Solis-Macias completely understood her, she made no promises to him, and
he agreed to speak to her without an attorney. Thereafter, Solis-Macias testified and
12
Hughes, 296 Ga. at 746 (1) (punctuation omitted); accord Pena, 297 Ga. at
421 (3).
13
Hughes, 296 Ga. at 746 (1) (punctuation omitted); accord Pena, 297 Ga. at
421 (3).
14
Hughes, 296 Ga. at 746 (1) (punctuation omitted); accord Pena, 297 Ga. at
421 (3).
8
claimed that he was too overwhelmed with emotion at the time to understand Officer
Schuler and did not recall being informed that he could have an attorney present. But
he did admit to telling Officer Schuler that he would speak with her. At the
conclusion of the hearing, the trial court denied Solis-Macias’s motion to suppress
his statement, finding that he knowingly and intelligently waived his Miranda rights,
and that his statement was freely and voluntarily given, with no hope of benefit or
fear of injury.
Solis-Macias now contends that because his native language is Spanish, Officer
Schuler did not properly advise him of his Miranda rights when she merely
summarized those rights in Spanish rather than reading them verbatim as she did in
English. This argument is a nonstarter. Indeed, even if there were some inconsistency
in the exact form of the various warnings summarized by Officer Schuler, this fact
“does not establish that the statement was involuntary.”15 And considering the totality
of the circumstances, including the rather important fact that the interrogating officer
who is a native Spanish speaker testified that Solis-Macias understood her and chose
to speak without an attorney, the trial court did not err in concluding that (1) the State
15
Delacruz v. State, 280 Ga. 392, 394 (2) (627 SE2d 579) (2006) (punctuation
omitted).
9
demonstrated by a preponderance of the evidence that Solis-Macias knowingly and
voluntarily waived his Miranda rights, and (2) his custodial statement was
voluntary.16
3. Finally, Solis-Macias claims that the trial court erred in refusing to give a
jury instruction on sexual battery as a lesser-included offense of child molestation as
alleged in Counts 3 through 6 of the indictment. Once again, we disagree.
In this matter, Counts 3 through 6 of the indictment charged Solis-Macias with
four separate acts of child molestation, alleging in each that he “did commit an
indecent act to Y. B., a child under the age of 16 years, with the intent to arouse the
sexual desires of himself by touching said victim’s genital area, said act being
separate and distinct from the acts alleged [in the other child molestation counts] . .
. .” And during the charge conference, Solis-Macias’s counsel requested that the trial
court instruct the jury on sexual battery as a lesser-included offense of those child-
16
See Pena, 297 Ga. at 422 (3) (holding that Spanish-speaking defendant’s
waiver of his Miranda rights was knowing and voluntary, because even though
Spanish-speaking detective who gave warnings mispronounced some Spanish words
and used some unintelligible words, totality of circumstances showed defendant
understood); Delacruz, 280 Ga. at 394-95 (2) (holding that whether an accused
understood the Miranda warnings depends on the totality of the circumstances, not
solely on the interpreter’s skill, and that an imperfect translation of the rights does not
rule out a valid waiver as long as the accused understood the warnings).
10
molestation counts. But the State objected, and the trial agreed, ruling that sexual
battery was not a lesser-included offense of child molestation in this case. Even so,
Solis-Macias argues that the trial court’s refusal to give the instruction constituted
error.
Needless to say, this Court reviews the trial court’s “refusal to give a requested
charge for an abuse of discretion.”17 And when the evidence shows “either the
completed offense as charged or no offense, such evidence will not support a verdict
for one of the lesser grades of the offense, and the court should not charge on the
lesser grades of the offense.”18 But when a case contains some evidence, no matter
how slight, that shows the defendant “committed a lesser offense, then the court
should charge the jury on that offense.”19
Relevant here, OCGA § 16-6-4 (a) (1) provides that “[a] person commits the
offense of child molestation when such person . . . [d]oes any immoral or indecent act
to or in the presence of or with any child under the age of 16 years with the intent to
17
Jones v. State, 352 Ga. App. 380, 386 (2) (a) (834 SE2d 881) (2019)
(punctuation omitted).
18
Walker v. State, 279 Ga. App. 749, 751 (3) (a) (632 SE2d 482) (2006)
(punctuation omitted).
19
Id. (punctuation omitted).
11
arouse or satisfy the sexual desires of either the child or the person.” And under
OCGA § 16-6-22.1 (b), “[a] person commits the offense of sexual battery when he or
she intentionally makes physical contact with the intimate parts of the body of another
person without the consent of that person.” So, Solis-Macias is correct that if the
evidence showed “a touching without the intent necessary for child molestation, he
would have been entitled to a jury instruction on sexual battery as a lesser included
offense.”20
But here, Solis-Macias has pointed to no evidence demonstrating that a touch
occurred without the necessary intent. In fact, the State presented evidence suggesting
otherwise, including that Solis-Macia asked Y. B. to be his girlfriend, would
sometimes touch her after she got out of the shower, engaged in tongue-kissing with
her, and had her touch his penis. Furthermore, Solis-Macias did not defend the case
on the ground that he touched Y. B. without intent. Rather, his custodial statement
20
Smith v. State, 310 Ga. App. 392, 396 (3) (713 SE2d 452) (2011); see
Walker, 279 Ga. App. at 751 (3) (a) (explaining that if an indictment alleged child
molestation, and if the evidence presented at trial was sufficient to show an
intentional touching of the child’s intimate parts, but without the intent necessary to
prove child molestation, a charge on sexual battery as a lesser included-offense would
be required); Strickland v. State, 223 Ga. App. 772, 776 (1) (b) (479 SE2d 125)
(1996), overruled on other grounds by Watson v. State, 297 Ga. 718 (777 SE2d 677)
(2015) (same).
12
notwithstanding, he seemingly pursued the “all or nothing” defense that Y. B. made
up her story. For instance, on cross-examination of Ingrid and during closing
argument, Solis-Macias focused on Y. B. expressing a desire to live with her
biological father and implied that she had a history of fabricating allegations in order
to change her custody situation. Additionally, the only defense witness was a
Department of Family and Child Services worker who investigated allegations of
abuse by the biological father and testified that Y. B. complained about both parents
in the past as a means of changing her custody situation as it suited her. Moreover,
Solis-Macias also questioned the DFCS worker on the appropriateness of Y. B.
sharing a bedroom with her seventeen-year-old brother, implying that Y. B.’s
knowledge of male genitalia was a result of seeing her brother naked as opposed to
any inappropriate conduct on his part. Given these circumstances, the evidence did
not support a charge on sexual battery as a lesser-included offense of child
molestation; but on the contrary, demonstrated either the indicted crime or no crime
at all.21 Accordingly, the trial court did not err in refusing to give a jury instruction
21
See Smith, 310 Ga. App. at 396 (3) (holding that the defendant was not
entitled to jury charge on sexual battery as a lesser included offense of child
molestation because defendant did not defend the case on ground that he touched
victim without intent and instead pursued “all or nothing” defense that victim made
up her entire story); McGruder v. State, 279 Ga. App. 851, 855 (2) (b) (632 SE2d
13
on sexual battery as a lesser-included offense of child molestation for Counts 3
through 6 of the indictment.
For all these reasons, the trial court’s judgment is affirmed.
Judgment affirmed. Rickman and Brown, JJ., concur.
730) (2006) (holding that charge on sexual battery not required when evidence
showed the intent necessary for child molestation and defendant asserted that
touching never occurred); Walker, 279 Ga. App. at 752 (3) (a) (same).
14