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Hernandez v. State

Any error in the jury's failure to specifically find that the victim was under age 16 was harmless, given the overwhelming evidence that the victim was under 16 when the crime occurred.

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Following a jury trial, Ruiz Hernandez appeals from his conviction for felony sexual battery,1 contending that the trial court erred by 1 ruling that he voluntarily waived his Miranda 2 rights, and 2 sentencing him for felony sexual battery despite the lack of a specific factual finding as to the victim’s age. For the reasons that follow, we affirm. Construed in favor of the verdict,3 the evidence shows that Hernandez lived with his girlfriend and her five-year-old daughter for several months. One evening, the girlfriend went upstairs to tuck her daughter into bed and found Hernandez standing unclothed over her daughter, who was lying on the floor near the bathroom. The girlfriend moved Hernandez into the bathroom and took her daughter to the bedroom and asked her what had happened. The daughter said that Hernandez touched her “pee pee.” The girlfriend called the police, who arrived and asked Hernandez to leave, which he did. In a subsequent forensic interview, the daughter again stated to the interviewer that Hernandez touched her “pee pee.”

Hernandez was arrested and charged with child molestation. At the close of the evidence at trial, the trial court instructed the jury on the offense of sexual battery, pursuant to Hernandez’s written request. The jury found Hernandez guilty of sexual battery, and, based on the victim’s age, the trial court sentenced Hernandez to five years in prison pursuant to OCGA § 16-6-22.1 d. Hernandez now appeals.

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