306 Ga. 216
FINAL COPY
S19A0042. VASQUEZ v. THE STATE.
BETHEL, Justice.
Christian Vasquez appeals from the denial of his motion for
new trial after a jury found him guilty of malice murder, two counts
of felony murder, aggravated assault, two counts of cruelty to
children in the first degree, and concealing the death of another in
connection with the death of his two-year-old daughter, Prisi
Vasquez.1 He argues that the State failed to present sufficient
1 Vasquez was indicted jointly with Amy Ruiz by a Gwinnett County
grand jury on June 3, 2015. Vasquez was indicted for malice murder, two
counts of felony murder, aggravated assault, two counts of cruelty to
children in the first degree, and concealing the death of another. Ruiz
was charged jointly with Vasquez on one count of felony murder, and she
was charged with separate counts of cruelty to children in the first degree
and concealing the death of another. On July 2, 2015, Vasquez moved to
sever the parties, and the trial court granted that motion. In a separate
proceeding, Ruiz was tried and convicted of involuntary manslaughter,
cruelty to children in the first degree, and concealing the death of
another. Her case is not addressed in this appeal. Following a jury trial
held in December 2016, Vasquez was convicted on all charged counts. The
felony murder counts were vacated by operation of law, and the trial
court sentenced Vasquez to serve life in prison for malice murder, twenty
evidence to support his conviction for cruelty to children in the first
degree predicated on his failure to seek timely medical care for the
victim. He also argues that there was insufficient evidence to
support his conviction for concealing the death of another because
the State did not prove that the applicable statute of limitation was
tolled. Vasquez also argues that the trial court committed plain
error by giving erroneous jury instructions regarding the statute of
limitation applicable to the offense of concealing the death of
another and the manner in which the statute of limitation could be
tolled. He further argues that the trial court committed plain error
when it failed to instruct the jury regarding corroboration of
years consecutive for aggravated assault, twenty years consecutive for
cruelty to children in the first degree, and ten years consecutive for
concealing the death of another. Vasquez filed a motion for new trial on
December 21, 2016, and he subsequently amended the motion twice. The
trial court held a hearing on the motion on February 23, 2018, and it
denied the amended motion in an order dated May 15, 2018. In that
order, the trial court found that the aggravated assault conviction should
have merged with the malice murder conviction, and it amended
Vasquez’s sentence accordingly. Vasquez filed a notice of appeal on May
29, 2018. This case was docketed to the Court’s term beginning in
December 2018 and submitted for a decision on the briefs.
2
accomplice testimony. Additionally, Vasquez argues that he received
ineffective assistance from his trial counsel based on his counsel’s
failure to object to the admission of evidence regarding prior acts of
child abuse committed by Vasquez and because his counsel did not
object to the trial court’s instruction regarding the statute of
limitation for concealing the death of another. Finally, Vasquez
argues that his convictions for cruelty to children in the first degree
should have merged with his conviction for malice murder. Finding
no reversible error, we affirm.
1. Viewed in the light most favorable to the jury’s verdict, the
evidence adduced at trial shows as follows. In February 2007,
Christian Vasquez and Amy Ruiz were married2 and lived in a
rented house in Gwinnett County with their two-year-old daughter,
Prisi, and Ruiz’s three-year-old son, J. E. In October 2006, Prisi and
J. E. had been removed from the custody of Vasquez and Ruiz and
placed in the custody of Ruiz’s father pursuant to a juvenile court
2 Vasquez and Ruiz divorced approximately three years before Vasquez’s
trial.
3
order following allegations that Vasquez and Ruiz abused J. E.3
Ruiz’s father had facilitated opportunities for Ruiz to be with the
children, including allowing Vasquez, Ruiz, and the children to live
with him before they began renting the house in Gwinnett County.
The children were still in the legal custody of Ruiz’s father in
February 2007.
Ruiz left their home at 7:30 on the morning of February 3 to
babysit the daughter of her sister, Erica Arroyo.4 Vasquez stayed
3 At trial, Vasquez elicited testimony from Ruiz on cross-examination
regarding a June 23, 2008 interview Ruiz gave to a police detective from
Gwinnett County. In that interview, Ruiz described a prior incident in which
J. E. had been hurt while he was with Vasquez’s family. She told the detective
that, when J. E. was hurt, she went straight to the hospital. There, the police
took J. E. from Ruiz’s custody. She told the detective in the interview that she
was “scared they were going to say I’m the one that did this to my son. It was
my fault.” Ruiz was charged with child abuse arising from that incident, but
that charge was later dismissed. Vasquez elicited testimony from Ruiz’s sister,
Erica Arroyo, on cross-examination that, a couple of days prior to the incident
in which Prisi was killed, Arroyo had gone to Ruiz’s house. Vasquez was not
home at the time. Upon arriving at the home, Arroyo found Prisi locked in the
bathroom with the lights off. Prisi was crying, and she had a black eye. When
Arroyo confronted Ruiz about this, Ruiz told her Prisi “won’t listen to me. I
need to teach her to be potty trained.”
4 Arroyo testified that this was the first time Ruiz had ever done this, as,
prior to February 3, Arroyo would always drop off her daughter at Ruiz’s house
for babysitting. Arroyo testified that, when Ruiz arrived at her house, Ruiz told
her she had just left Walmart and was already in the area. Arroyo testified
that Ruiz was upset when she arrived at Arroyo’s house.
4
home with J. E. and Prisi. Ruiz testified that Prisi was “completely
okay” and in good health when Ruiz left home that morning.
At 9:36 a.m., Vasquez called Ruiz at Arroyo’s house and asked
her to come home because Prisi was sick.5 Ruiz told Arroyo, “I’ve got
to go,” and took Arroyo’s daughter with her. Ruiz did not return to
her house immediately, and she would later testify that Vasquez
called her several times that morning.6 Ruiz ran several errands
before returning home between 5:00 and 6:30 that evening.7
When Ruiz arrived home, Prisi was lying on the couch next to
Vasquez and J. E. Vasquez was telling Prisi to wake up, but she did
not respond. Ruiz went over to try to talk to Prisi and observed that
she could make noises with her mouth but was unable to form words,
5 Arroyo testified that Ruiz received this call shortly after arriving at her
house. Arroyo testified that she could hear children crying in the background
on the call. Ruiz did not indicate to Arroyo that anything was wrong after
hanging up the phone.
6 Phone records introduced by Vasquez show only one call placed from
Vasquez’s cell phone to Ruiz’s cell phone on February 3, 2007. That call was
placed at 9:36 a.m. and lasted less than one minute. Arroyo testified that Ruiz
received only one phone call while Ruiz was at Arroyo’s house on the morning
of February 3.
7 At some point that evening, Arroyo’s husband picked up their daughter
from the Vasquez/Ruiz house. Arroyo testified that Ruiz was waiting outside
with Arroyo’s daughter when her husband arrived at the house.
5
did not respond to Ruiz, and did not move. Prisi then stopped
breathing.
Ruiz asked Vasquez, “What did [you] do to my daughter?”
Vasquez told her to “shut up” and that “he needed time.” Vasquez
took Ruiz’s keys and phone and then took Prisi away from Ruiz and
went into the bedroom, barring Ruiz from coming into the room. He
then stuffed Prisi’s unclothed body into a trash bag and hid her in
the attic through an entrance in the bedroom closet. Around 11:00
that night, Ruiz called Arroyo and left a voicemail in which she said,
“Call me back. Something happened. Call me back.” Arroyo called
Ruiz back later that night, but Ruiz did not answer.
The next morning, Sunday, February 4, Arroyo again called
Ruiz. This time, Ruiz answered and asked for $100 in cash from
Arroyo. Ruiz told Arroyo she needed the money to pay her electric
bill, but she would later testify that she sought the money so that
Vasquez could flee. Arroyo gave Ruiz the money she requested. That
day, Ruiz also obtained a check from Vasquez’s employer (Ruiz’s
uncle) for $110 and cashed it. Ruiz testified that Vasquez threatened
6
to kill J. E. if she did not get money for him. Vasquez used the money
to purchase bus tickets to Mexico. Ruiz, Vasquez, and J. E. then took
a bus to Mexico that day.
Ruiz did not inform Arroyo or any other members of her family
that she and Vasquez were leaving, and her family became
concerned when they were unable to contact her. Arroyo and other
members of Ruiz’s family went to her house on Tuesday, February
6. Upon entering the house, they observed food on the table, Prisi’s
car seat sitting in the living room, clothing strewn about the house,
and a series of black bags left out in the house, which they found
unusual because Ruiz normally kept a clean house. They also
noticed an article of Prisi’s clothing with a wet stain on it. Ruiz’s
family filed a missing person report that day concerning Vasquez,
Ruiz, and the children, and Gwinnett County police responded to the
home to investigate. Police entered the home, interviewed Ruiz’s
family members who were present, and took photographs of the
home’s living area and bedrooms. They also noticed a bottle of
hydrogen peroxide and a bottle of children’s Tylenol on the living
7
room coffee table and an open bottle of rubbing alcohol in one of the
bedrooms. A detective would later testify that it appeared someone
had left the house “in a hurry.” At that time, the police were not
aware there was an access point to the attic in the home, and the
police never attempted to enter the attic. Prisi’s body was not
discovered by the police that day.
On February 5, 2007, the owner of the home came to collect
rent. No one answered the door at the house. Two weeks later,
having had no correspondence with Ruiz after trying to contact her,
he went inside the house. He noticed that numerous items of
clothing, furniture, and other personal belongings were in the house.
At the end of February 2007, still having had no contact with Ruiz,
the landlord cleaned out the house and rented it to new tenants.
During this process, he did not go into the attic.
The new tenants later moved out, and the landlord decided to
move into the house himself while making some upgrades and
repairs. While living there, he noticed a foul odor in the house that
he could not remove. He hired someone to help him with the smell,
8
and that person thought the smell might be coming from a dead
rodent. He also noticed a small stain on the ceiling between the
living room and the kitchen.
In June 2007, Ruiz called Arroyo. She told Arroyo that she was
in Mexico with Vasquez, J. E., and Prisi. Ruiz told Arroyo that she
had cancer and that she had gone to Mexico for treatment. Arroyo
questioned this, but offered to send a box of Prisi’s clothes to Ruiz.
Ruiz declined the offer, telling Arroyo that Vasquez’s mother bought
Prisi “anything she wants.” Ruiz told Arroyo that the kids were
doing well, that they were at the beach, and that everyone was
having a great time.
Arroyo also spoke to Ruiz by telephone in July 2007. During
that call, Ruiz told Arroyo that she needed a passport and that she
planned to leave Prisi in Mexico and return to the United States
with J. E. Ruiz explained that she was not bringing Prisi because
she would not listen to Ruiz.
Some time in mid-2008, Ruiz admitted to her father during a
phone call that Prisi was dead and that her body was hidden in the
9
attic of the Gwinnett County house.8 On June 20, 2008, her father
and Arroyo went to the Gwinnett County police department to report
what Ruiz had told him to a detective. Arroyo told the detective
about her contact with Ruiz the day Prisi was killed, her efforts to
contact Ruiz the following week, and the call she had with Ruiz in
the summer of 2007.
After this discussion, the detective went to the house and spoke
with the landlord, informing him that he had reason to believe a
homicide had occurred in the house. The landlord allowed the
detective to enter the house, and, upon entering, the detective
immediately recognized the smell of decaying flesh. Upon a search
of the attic, the detective found Prisi’s remains. Her body had been
wrapped in four black garbage bags, hidden behind a joist in the
attic, and covered by insulation. The detective contacted employees
from the Gwinnett County Medical Examiner’s Office, who came to
the house. The detective and personnel from the medical examiner’s
8 Arroyo also spoke with police after Ruiz admitted to her and their
father that Prisi was dead. Among other things, Arroyo told police that Ruiz
had “always been a liar.”
10
office removed the body from the attic.
That day, Prisi’s body was transported to the medical
examiner’s office for autopsy. The medical examiner established
that the body was that of a young child between two and three years
old. In addition to noting that the body was partially skeletonized
and markedly decomposed, the medical examiner determined that
the skull was fractured. The fracture, to the back left side of the
skull, was a radiating fracture caused by a blunt impact. The
fracture also included a displaced piece of bone, which the examiner
determined would take “a significant force to break.” The medical
examiner testified that skull trauma could result from a household
accident but that the characteristics of the fracture as well as the
fact that the body was concealed in plastic bags and hidden in the
attic argued against a finding of accidental death. The examiner
determined that the impact likely resulted in injury to the brain and
trauma to the spinal cord and brain stem. The medical examiner
testified that these injuries could be consistent with non-
responsiveness in the extremities and an inability to respond when
11
called by name. The medical examiner determined that the cause of
death was blunt-force head trauma and that the manner of death
was homicide.
On June 20, 2008, after the detective found Prisi’s remains in
the attic of the house, Ruiz’s father called Ruiz. The call was
recorded by law enforcement, and, in that call, Ruiz stated again
that Prisi had been left in the attic on February 3, 2007. Ruiz told
her father that she wanted to call 911 when she discovered that Prisi
was injured but that “[t]hey weren’t going to believe me. They were
going to put me in jail. And they were going to take [J. E.] away
from me. And also, I was going to get you guys into worse problems,
and I didn’t want my siblings to suffer.”
On June 23, 2008, the detective spoke to Ruiz by phone. In that
call, Ruiz stated that Vasquez had wrapped Prisi’s body in garbage
bags and placed her in the attic. She also indicated that she was in
Mexico with J. E., but not Vasquez. Ruiz told the detective that she
and Vasquez had borrowed money from her sister and taken a bus
to Mexico. Following the call, the detective took out charges against
12
Vasquez and Ruiz for the death of Prisi. The detective was not aware
of Vasquez’s whereabouts at that time. On June 25, 2008, Ruiz’s
father contacted the detective to report that Ruiz had relayed to him
that J. E. had told her that Vasquez hit Prisi in the head with a tube.
In the summer of 2008, Arroyo traveled to Mexico so that she
could bring J. E. back to the United States. Arroyo did not speak
with Ruiz while she was in Mexico, and she picked up J. E. from
other family members. J. E. returned to Gwinnett County with
Arroyo and lived with her following a placement by the Gwinnett
County Division of Family and Children Services (DFCS). On three
occasions, J. E. told Arroyo that “he hit her — he hit her in the head”
with “a tube.” Arroyo described J. E. as being “upset” when he told
her this and that he told Arroyo that he was “scared and really
afraid.” Arroyo testified that J. E. also acted scared around male
members of her family. Arroyo began taking J. E. to therapy after
these outbursts.
On August 29, 2008, J. E. underwent psychological testing
requested by Gwinnett County DFCS. The psychologist
13
administered a “children perception test,” in which photographs are
shown to the subject and the subject is prompted to express feelings
and thoughts about what is shown in the photos. The psychologist
testified that such photos might include, for example, a “typical
family scene,” a child riding a bike down a street, or an adult reading
a book to a child. In that interview, J. E. responded spontaneously
to one photograph by saying “this is the daughter, these are her
parents, and the man kill [sic] the daughter with a pipe.” As to a
different photograph, J. E. stated, “He kill [sic] her, she’s dead.” The
psychologist who performed the interview testified that J. E. became
“super stressed and anxious” as he gave these responses and that
these manifestations were triggered by every photograph which
showed a male figure. J. E. then began pacing around the interview
room, curled into a fetal position on the floor, and asked to stop. The
psychologist was unable to finish the interview. The psychologist
testified at trial that there was no evidence J. E. had been coached.
J. E. was also treated by a therapist eight to ten times between
February and August 2009. Arroyo told the therapist that J. E. had
14
witnessed the murder of his little sister. As part of the therapy, the
therapist introduced J. E. to a playhouse that had figurines of a
generic father, mother, and three children. During one session, J. E.
was playing with the figurines and knocked the father figure off the
roof of the playhouse. While playing, he told the therapist that “his
daddy had hurt his little sister.” In another instance, J. E. described
himself and his sister as “crying and screaming.” He then said that
his sister’s crying and screaming “suddenly stopped.”
Ruiz returned to the United States on September 9, 2009. She
turned herself in to law enforcement at the Texas-Mexico border on
charges relating to Prisi’s death. She was transferred to Gwinnett
County on October 5, 2009, where she was booked into jail. While
there, she executed an affidavit in support of Vasquez’s extradition
from Mexico. The parties stipulated that Vasquez was extradited
from Mexico and booked into jail in Gwinnett County on January 17,
2013.
(a) Sufficiency of Evidence as to Child Cruelty Count.
Vasquez contends that the evidence presented by the State was
15
insufficient to support his conviction for child cruelty in the first
degree predicated on his failure to seek timely medical care for Prisi.
We disagree.
OCGA § 16-5-70 (b) provides that a “person commits the offense
of cruelty to children in the first degree when such person
maliciously causes a child under the age of 18 cruel or excessive
physical or mental pain.” In this case, Count 6 of the indictment
alleged that Vasquez committed this offense by failing to seek
medical care for Prisi in a timely manner despite her being in
obvious need of such aid.
As we have previously discussed:
For purposes of this Code section, malice in the legal
sense[ ] imports the absence of all elements of justification
or excuse and the presence of an actual intent to cause the
particular harm produced, or the wanton and [willful]
doing of an act with an awareness of a plain and strong
likelihood that such harm may result. Intention may be
manifest by the circumstances connected with the
perpetration of the offense. Intent is a question of fact to
be determined upon consideration of words, conduct,
demeanor, motive, and all other circumstances connected
with the act for which the accused is prosecuted.
(Citations and punctuation omitted.) Brewton v. State, 266 Ga. 160,
16
161 (2) (465 SE2d 668) (1996). We have further noted that “[m]alice,
as an element of the crime of cruelty to children, can be shown by
intentionally and unjustifiably delaying necessary medical attention
for a child, as that delay may cause the child to suffer from cruel and
excessive physical pain.” (Citation and punctuation omitted.)
Delacruz v. State,
280 Ga. 392, 396 (3) (
627 SE2d 579) (2006). With
regard to the crime of cruelty to children, “criminal intent may be
inferred from conduct before, during and after the commission of the
crime.” Johnson v. State,
269 Ga. 632, 634 (
501 SE2d 815) (1998).
Here, the State presented evidence that Prisi was two years old
at the time of this incident. The testimony established that Vasquez
hit Prisi over the head with a “tube.” This blow caused a fracture to
Prisi’s skull, ultimately resulting in her death. Ruiz testified that
Vasquez then told her over a phone call that Prisi was “sick.” When
Ruiz returned to the couple’s home, she found Prisi alive but
unresponsive, and Prisi later stopped breathing. Instead of seeking
medical care or reporting Prisi’s injury to any authority, Vasquez
moved Prisi to the bedroom, placed her body in the attic, pressured
17
Ruiz to obtain money for bus tickets, and fled the country. This
evidence was sufficient to support Vasquez’s conviction for cruelty
to children in the first degree under Count 6 of the indictment.
(b) Sufficiency of Evidence of Tolling of Statute of Limitation
for Concealing the Death of Another.
Although Vasquez does not challenge the sufficiency of the
evidence presented by the State as to the elements of the crime of
concealing the death of another, he argues that the State failed to
present sufficient evidence that the statute of limitation for that
offense was tolled. He also argues that the statute of limitation
applicable to the offense of concealing the death of another is four
years because OCGA § 17-3-1 (c), which increases the statute of
limitation to seven years for any felony offense committed against a
victim who is under 18 years of age at the time of the offense,9 does
9 OCGA § 17-3-1 (c) provides, in relevant part:
[P]rosecution for felonies [including concealment of the death of
another] shall be commenced within four years after the commission
of the crime, provided that prosecution for felonies committed against
victims who are at the time of the commission of the offense under the
age of 18 years shall be commenced within seven years after the
commission of the crime.
18
not apply to the offense of concealing the death of another. He
argues that the concealment offense has no victim but is instead an
offense against public order.
Pretermitting whether OCGA § 17-3-1 (c) increases the statute
of limitation for concealing the death of another to seven years in
this case, the State presented sufficient evidence to authorize the
jury to determine that the statute of limitation was tolled from
February 4, 2007 until January 17, 2013. In criminal cases, the
statute of limitation normally runs from the time the criminal act is
committed to the time of indictment. Jenkins v. State, 278 Ga. 598,
601 (1) (a) (
604 SE2d 789) (2004). However, OCGA § 17-3-2 (1)
provides, in relevant part, that “[t]he period within which a
prosecution must be commenced under Code Section 17-3-1 . . . does
not include any period in which [t]he accused is not usually and
publicly a resident within this state[.]” We have previously
determined that this language has the same meaning as former
Code Ann. § 27-601, which provided that “[i]f the offender shall
abscond from this State, or so conceal himself that he cannot be
19
arrested, such time during which he has been absent from the State,
or concealed, shall not be computed or constitute any part of said
several limitations.” See Danuel v. State, 262 Ga. 349, 351 (2) (
418
SE2d 45) (1992). As we noted in Danuel, “abscond” may be defined
as
[t]o go in a clandestine manner out of the jurisdiction of
the courts, or to lie concealed, in order to avoid their
process. To hide, conceal, or absent oneself clandestinely,
with the intent to avoid legal process. Postponing
limitations. Fleeing from arresting or prosecuting officers
of this state.
(Citation omitted.) Danuel, 262 Ga. at 352 (3).
Here, the evidence established that Vasquez concealed Prisi’s
death on February 3, 2007, by wrapping Prisi’s body in trash bags
and placing it in the attic. Vasquez (along with Ruiz and J. E.)
boarded a bus in Gwinnett County on February 4, 2007, that was
bound for Mexico. After turning herself in to law enforcement at the
Texas-Mexico border in September 2009, Ruiz returned to Gwinnett
County on October 5, 2009, where she was arrested. While there, she
executed an affidavit in support of Vasquez’s extradition from
20
Mexico. Vasquez was extradited from Mexico and booked into jail in
Gwinnett County on January 17, 2013. Vasquez was indicted on
June 3, 2015.
The evidence recounted above authorized the jury to determine
that Vasquez had absconded and that the statute of limitation was
tolled from February 4, 2007, until January 17, 2013. The evidence
established both the date on which Vasquez left Georgia (February
4, 2007) and the date he was returned by compulsory legal process
(January 17, 2013). The evidence allowed the jury to infer that he
remained outside of Georgia for the entire period between those
dates and that he did so for the purpose of “conceal[ing] himself [so]
that he [could not] be arrested.” (Citation, punctuation and
emphasis omitted.) Danuel, 262 Ga. at 352 (2). Consequently, the
jury was authorized to find that the statute of limitation on the
offense of concealment of the death of another did not begin to run
until January 17, 2013. As Vasquez was indicted on June 3, 2015,
less than two-and-a-half years later, the jury was authorized to find
that prosecution of this offense was not barred by either a four-year
21
or seven-year statute of limitation.
(c) Sufficiency of Evidence Presented on Remaining
Convictions.
Vasquez does not challenge the legal sufficiency of the evidence
supporting his additional convictions. Nevertheless, in accordance
with this Court’s practice in murder cases, we have reviewed the
record and conclude that the evidence presented at trial and as
summarized above was sufficient to authorize a rational jury to find
Vasquez guilty beyond a reasonable doubt of each of the crimes for
which he was convicted. Jackson v. Virginia, 443 U. S. 307 (
99 SCt
2781, 61 LE2d 560) (1979).
2. Claims of Plain Error in Jury Instructions.
Vasquez argues that the trial court erred in three ways with
respect to the instructions it gave to the jury. As Vasquez made no
objection to the jury charge as given by the trial court, we review the
jury charge for plain error.10
10 OCGA § 17-8-58 (a) provides in relevant part that “[a]ny party who
objects to any portion of the charge to the jury or the failure to charge the jury
shall inform the court of the specific objection and the grounds for such
22
In the context of jury instruction errors, plain errors are
evaluated on appeal under the following four-part test:
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.) State v. Kelly, 290 Ga. 29, 33 (2)
(a) (
718 SE2d 232) (2011).
objection before the jury retires to deliberate.” OCGA § 17-8-58 (b) further
provides that a failure to object as specified in subsection (a) “preclude[s]
appellate review of such portion of the jury charge, unless such portion of the
jury charge constitutes plain error which affects substantial rights of the
parties. . . .”
23
(a) Jury Instruction Regarding Statute of Limitation Applicable
to Concealing the Death of Another.
Vasquez argues that the trial court plainly erred by instructing
the jury that the statute of limitation applicable to the offense of
concealing the death of another was seven years instead of four
years. Pretermitting whether this instruction was erroneous,
Vasquez cannot show that the failure to instruct the jury as to a
four-year statute of limitation affected the outcome of his trial. As
we noted in Division 1 (b), the evidence presented by the State
established that the statute of limitation was tolled from February
4, 2007, until January 17, 2013, and that Vasquez was indicted on
June 3, 2015. The time that elapsed between the end of the tolling
period and the date of the indictment was just over two-and-a-half
years. Thus, regardless of whether a four-year or seven-year statute
of limitation applied to the offense, the only evidence presented in
the case regarding tolling showed that Vasquez was indicted for the
offense of concealing the death of another within the limitation
period, regardless of which one applied. Vasquez has not
24
demonstrated any reasonable probability that the trial court’s
instruction affected the outcome of the case. Thus, we find no plain
error.
(b) Jury Instruction Regarding Manner of Tolling of Statute of
Limitation.
Vasquez also argues that the trial court plainly erred by
erroneously instructing the jury as to the manner by which the
statute of limitation could be tolled in this case. In its charge to the
jury, the trial court instructed the jury that, as to the statute of
limitation applicable to the non-murder counts of the indictment,
the jury should “exclude from [its] calculation any period of time
during which the evidence shows that . . . the defendant was not
usually and publicly a resident within this state; [t]he person
committing the crime is unknown or the crime is unknown”
(emphasis supplied). Vasquez argues that this instruction was
erroneous because the indictment alleged only that the statute of
limitation was tolled for the periods during which the crime was
unknown and in which Vasquez was not usually and publicly a
25
resident of Georgia. He argues that the trial court’s charge expanded
the indictment by allowing the jury to find that the statute of
limitation was tolled in a manner not alleged by the State.11
On appeal, we must review the jury charges as a whole. Scott
v. State, 302 Ga. 29, 31 (2) (
805 SE2d 40) (2017). In this case, we find
no plain error in the instruction given. Taken as a whole, it is
unlikely the jury would have understood that its verdict could be
based on something other than the evidence of tolling that had been
presented by the State. Young v. State,
305 Ga. 92, 96 (4) (
823 SE2d
774) (2019). Significantly, the State presented no evidence or
argument suggesting that there was any period in which Vasquez
was unknown to the State after Prisi’s death was discovered. Prisi’s
death remained unknown to the State until June 2008, when Ruiz’s
11 The State, through the Attorney General, notes that “[i]t is not usually
cause for a new trial that an entire Code section is given even though a part of
the charge may be inapplicable under the facts in evidence,” citing Lee v. State,
265 Ga. 112, 113 (2) (a) (
454 SE2d 761) (1995). But Lee involved a situation in
which an overbroad instruction may have worked to the defendant’s benefit,
as the jury was instructed as to four theories of justification under OCGA § 16-
3-21, rather than the two that were implicated by the evidence. Lee,
265 Ga.
at 113-114 (2) (a). Because, in this case, the inclusive instruction arguably
worked to the defendant’s detriment, our analysis in Lee is inapplicable.
26
father gave information to the police about what he had learned
from Ruiz and the police subsequently found Prisi’s body in the attic.
But that day, the police learned from Ruiz’s father that Ruiz had
implicated Vasquez in Prisi’s death. As noted above, the evidence
further established that Vasquez had fled to Mexico and was outside
Georgia from February 4, 2007, until his extradition on January 17,
2013. Thus, there was no period of time between the commission of
the crime and January 17, 2013, that required Vasquez to be
unknown to the State in order for the statute of limitation to be
tolled.
Moreover, the record reflects that the trial court read the
indictment to the jury and provided the indictment to the jury
during its deliberations. The indictment included the State’s tolling
allegations. The trial court also instructed the jury regarding the
State’s burden to prove the essential elements of each offense and
every material allegation of the indictment beyond a reasonable
doubt and the jury’s duty to acquit if it found that the State did not
prove guilt beyond a reasonable doubt. Under such circumstances,
27
Vasquez cannot show any harm from the trial court’s instruction.
Faulks v. State, 296 Ga. 38, 39 (2) (
764 SE2d 846) (2014). This
enumeration therefore fails.
(c) Failure to Instruct Jury as to Corroboration of Accomplice
Testimony.
Vasquez argues that the trial court plainly erred by failing to
instruct the jury regarding the need to corroborate the testimony of
an accomplice. We disagree.
In its charge to the jury, the trial court stated that “[t]he
testimony of a single witness, if believed, is sufficient to establish a
fact. Generally there is no legal requirement of corroboration of a
witness provided you find the evidence to be sufficient.” Vasquez did
not object to this charge, and he did not request that an instruction
on accomplice corroboration be included in the trial court’s charge to
the jury.
OCGA § 24-14-8 provides, in relevant part:
The testimony of a single witness is generally
sufficient to establish a fact. However, in . . . felony cases
where the only witness is an accomplice, the testimony of
a single witness shall not be sufficient. Nevertheless,
28
corroborating circumstances may dispense with the
necessity for the testimony of a second witness[.]
The single-witness rule is the general rule and is a guiding
principle of both the factfinder’s role in evaluating the evidence
presented at trial and the courts’ role in determining whether the
State has presented sufficient evidence to support the charges
against a defendant. In most cases, the rule allows the jury to find
the defendant guilty in the face of conflicting or inconsistent
evidence or on the basis of the uncorroborated testimony of a single
witness. See Handley v. State, 289 Ga. 786, 786-787 (1) (
716 SE2d
176) (2011) (construing former OCGA § 24-4-8). This rule is
longstanding, having been in statute in Georgia in some form at
least as far back as 1871. See Parsons v. State,
43 Ga. 197 (1871)
(construing former Code § 3702). For at least that long, this Court
has described the accomplice-corroboration rule as an exception to
this general principle. See id.; Childers v. State,
52 Ga. 106, 106
(1874) (construing former Code § 3755 and noting that the statute
“sets out with the statement that ordinarily one witness is sufficient
29
to establish a fact. It then declares there are exceptions to this
rule.”).
Here, the record shows that many of the State’s witnesses,
including law enforcement personnel and experts, were not
accomplices of Vasquez. Thus, because a single-witness instruction
would have been proper as to their testimony, there was no error in
the trial court’s instruction on the single-witness rule.
However, there was also evidence to support a finding that
Ruiz was an accomplice of Vasquez, particularly in the failure of
both individuals to seek medical care for Prisi or report her injuries
and subsequent death to authorities and in their joint efforts to
leave their home and flee to Mexico. Such evidence is clearly the type
of evidence our courts view as supporting the finding that one is an
accomplice. See, e.g., Jones v. State, 268 Ga. 12, 14 (1) (
483 SE2d
871) (1997) (witness’s presence at crime and subsequent flight can
support finding that witness was an accomplice); Jones v. State,
242
Ga. 893, 893-894 (1) (
252 SE2d 394) (1979) (witness’s presence,
companionship, and conduct after the crime are circumstances from
30
which her intent to participate in a criminal act can be inferred).
Given this evidence, it was clear and obvious error for the trial court
not to instruct the jury as to the corroboration requirements of
OCGA § 24-14-8 so that it could properly evaluate Ruiz’s testimony
and the need to have it corroborated by other witnesses or evidence
presented at trial. Stanbury v. State, 299 Ga. 125, 129-130 (2) (
786
SE2d 672) (2016); Hamm v. State,
294 Ga. 791, 794-797 (2) (
756
SE2d 507) (2014).12
However, the record makes clear that Vasquez intentionally
relinquished his right to have the jury instructed as to the
accomplice-corroboration requirement under OCGA § 24-14-8.
Under the plain error analysis articulated in Kelly, an objection is
12 The Attorney General argues that such an instruction was not
required under this Court’s decision in Jackson v. State, 294 Ga. 34, 36 (2) (
751
SE2d 63) (2013), which noted in dicta that “[w]here an accomplice witness’s
testimony is independently corroborated, a jury instruction on corroboration is
not required, whether or not the charge was requested by counsel.” However,
this proposition in Jackson (and a line of cases preceding it) was explicitly
overruled in Hamm. Curiously, the Attorney General’s brief later cites Hamm
for the proposition that failure to give the charge can, in some circumstances,
constitute a harmless error but did not note that Hamm overruled Jackson.
We remind all litigants of their duty to determine whether a prior decision of
this Court remains a binding precedent before citing it for a proposition in
support of its position.
31
intentionally relinquished or abandoned if it is “affirmatively
waived.” Applying the standard articulated in United States v.
Olano, 507 U. S. 725 (
113 SCt 1770, 123 LE2d 508) (1993), we have
contrasted such a waiver — the intentional relinquishment of a
known right — with “forfeiture,” which is the mere “failure to make
the timely assertion of the right.” (Citation and punctuation
omitted.) Cheddersingh v. State,
290 Ga. 680, 684 (2) (
724 SE2d 366)
(2012). An affirmative waiver may occur, for example, when a
defendant requests a specific jury instruction but later withdraws
such request, see Walker v. State,
301 Ga. 482, 485 (2) (a) (
801 SE2d
804) (2017); explicitly requests a jury instruction that he later
argues on appeal should not have been given, see Brown v. State,
298 Ga. 880, 882 (3) (
785 SE2d 512) (2016), and Woodard v. State,
296 Ga. 803, 810 (3) (a) (
771 SE2d 362) (2015); or objects to a charge
that he later argues on appeal should have been given, see Shank v.
State,
290 Ga. 844, 845 (2) (
725 SE2d 246) (2012). In such
circumstances, the defendant has “invited the alleged error, and it
therefore provides no basis for reversal.” Shank,
290 Ga. at 845 (2).
32
Generally, counsel’s silence at a juncture when a request for —
or objection to — a jury instruction might have been made will be
considered merely a forfeiture for which plain error review remains
available. Cheddersingh, 290 Ga. at 684 (2). However, Cheddersingh
indicates that the appellate court can conclude that the defendant’s
right — or objection — to a particular instruction was intentionally
relinquished if the appellate court can “discern [a] tactical reason on
the part of the defense” for failing to request (or object to, as the case
may be) a specific jury instruction.
Id. at 684 (2) (citing United States
v. Quinones,
511 F3d 289, 321 (E) (4) (2d Cir. 2007)). Federal courts
have articulated a similar approach to plain error review where it
appears that the failure to make a request or an objection was based
on counsel’s tactical choice. See, e.g., United States v. Etienne,
772
F3d 907, 913 (II) (A) (1) (1st Cir. 2014) (“We reverse only sparingly
in the plain error context, and we should be especially loath to do so
where it appears from the record that a failure to object was the
result of counsel’s trial tactics[.]” (citation omitted)); United States
v. Yu-Leung,
51 F3d 1116, 1122-1123 (C) (2) (2d Cir. 1995) (because
33
it was apparent that the failure to object to certain evidence was a
strategic choice, the appeal of the admission of the evidence was
waived); United States v. Pravato, 505 F2d 703, 705 (2d Cir. 1974)
(finding no plain error in erroneous jury charge where counsel failed
to object because the defendant “was undoubtedly pursuing the trial
tactic of not contesting the issue [addressed by the charge]”).
In this case, through our review of the record — including trial
counsel’s testimony at the hearing on Vasquez’s motion for new trial,
counsel’s opening statement and closing argument, and his cross-
examination of the State’s witnesses — we can discern that counsel
had a tactical reason for not requesting an accomplice-corroboration
charge. At the hearing on Vasquez’s motion for new trial, trial
counsel was asked by the State whether he considered Ruiz’s
testimony to be accomplice testimony. Counsel replied, “No . . . our
defense was she did it. She was responsible. And I didn’t really
want a jury hearing instructions that they were working together or
that they were somehow in cahoots on this thing. Our defense was
we were pointing fingers at [Ruiz], and that was it.” (Emphasis
34
supplied.) Through this testimony, trial counsel clearly articulated
on the record that his trial strategy was to place blame for Prisi’s
death solely on Ruiz and that this strategy was advanced by not
having the trial court suggest to the jury through its charge that
Ruiz and Vasquez were, or could be considered, accomplices.13
In addition to counsel’s testimony, the trial record reflects that
Vasquez’s trial counsel explicitly presented this theory of the case to
the jury in his opening statement and closing argument and through
13 We have previously recognized that, in the context of a claim of
ineffective assistance of counsel, it may be a reasonable trial strategy for the
defense to forgo a request for an accomplice-corroboration charge even though
it was warranted by the evidence presented at trial. See Manner v. State, 302
Ga. 877, 882-885 (II) (A) (
808 SE2d 681) (2017) (“[I]t was not objectively
unreasonable for counsel to conclude that any benefit to [defendant] in
instructing the jury that [accomplice’s] testimony required corroboration was
outweighed by the instruction’s potential conflict with the theory of defense.”);
Huff v. State,
300 Ga. 807, 812-813 (4) (
796 SE2d 688) (2017) (concluding that
trial counsel did not perform deficiently by failing to request an accomplice-corroboration charge because “[t]rial counsel articulated a deliberate strategic
purpose in not requesting a charge on accomplice testimony” and such strategy
was not patently unreasonable). Cf. Fisher v. State,
299 Ga. 478, 483-486 (2)
(a) (
788 SE2d 757) (2016) (holding that, where trial court gave single-witness
instruction, the failure to request accomplice-corroboration charge constituted
deficient performance where such failure was not the product of trial strategy
and where it would have been “completely unreasonable” for counsel to forgo a
request for such instruction). We note that Vasquez has not raised a claim of
ineffective assistance of counsel in regard to this issue.
35
cross-examination of the State’s witnesses. Accordingly, the record
reflects that trial counsel elected not to request a jury instruction
regarding accomplice corroboration as part of a conscious defense
strategy to place blame for Prisi’s death on Ruiz and to avoid any
suggestion by the trial court that Ruiz and Vasquez were
accomplices. Thus, we conclude that Vasquez intentionally
relinquished any request for an accomplice-corroboration
instruction.14 This claim of error therefore fails at the first step of
plain error review.
3. Claims of Ineffective Assistance of Counsel.
Vasquez argues that his trial counsel provided ineffective
assistance due to his failure to object to (a) the admission of an
exhibit that showed Vasquez had committed prior acts of child abuse
14 We reiterate that, where not affirmatively waived, the failure of the
trial court to give an accomplice-corroboration charge when it has given a
single-witness charge can constitute plain error. Compare Stanbury, 299 Ga.
at 129 (2) (plain error where trial court gave single-witness instruction but
erroneously failed to give accomplice-corroboration instruction), with Raines v.
State, 304 Ga. 582, 590-592 (3) (
820 SE2d 679) (2018) (failure to give
accomplice-corroboration instruction did not likely affect the outcome of the
proceedings in light of omission of single-witness instruction and giving of
other correct instructions).
36
against J. E., and (b) the trial court’s instruction to the jury that a
seven-year statute of limitation applied to the offense of concealing
the death of another.
To prevail on his claims of ineffectiveness, Vasquez
has the burden of proving both that the performance of
his lawyer was professionally deficient and that he was
prejudiced as a result. To prove deficient performance,
[Vasquez] must show that his trial counsel acted or failed
to act in an objectively unreasonable way, considering all
of the circumstances and in light of prevailing
professional norms. To prove resulting prejudice,
[Vasquez] must show a reasonable probability that, but
for counsel’s deficiency, the result of the trial would have
been different. In examining an ineffectiveness claim, a
court need not address both components of the inquiry if
the defendant makes an insufficient showing on one.
(Citations and punctuation omitted.) Stuckey v. State, 301 Ga. 767,
771 (2) (
804 SE2d 76) (2017) (citing Strickland v. Washington,
466
U. S. 668, 687 (
104 SCt 2052, 80 LE2d 674) (1984)).
(a) Vasquez argues that he received ineffective assistance from
his trial counsel due to counsel’s failure to object to the admission of
a juvenile court order that showed Vasquez committed prior acts of
child abuse against J. E. Vasquez also argues his trial counsel was
37
ineffective by failing to object to the admission of this order as an
exhibit and by allowing the exhibit to be sent out with the jury
during its deliberations.
Before trial, the trial court ruled that certain evidence of prior
acts of child abuse committed by Vasquez against J. E. between
February 7, 2007, and August 2008 was admissible under OCGA §
24-4-404 (b). In addition, the State had evidence of several out-of-
court statements that J. E. made to various individuals, including
law enforcement officers, counselors, and a guardian ad litem, about
the circumstances of Prisi’s death. Vasquez’s trial counsel and the
prosecutor agreed before trial that, if Vasquez would waive J. E.’s
presence at trial when his hearsay statements were presented to the
jury and stipulate as to the reliability of such statements, then the
State would not introduce evidence of the prior acts covered by the
trial court’s ruling under Rule 404 (b).
Trial counsel testified at the hearing on Vasquez’s motion for
new trial that the juvenile court order was not covered by this
agreement, as the agreement dealt only with allegations of abuse
38
that occurred in 2007 and 2008 while Vasquez, Ruiz, and J. E. were
in Mexico after Prisi’s death. The juvenile court order at issue dealt
with abuse of J. E. that occurred before Prisi’s death.
Counsel also testified that the juvenile court order reflected
allegations that Ruiz (and Vasquez) committed acts of abuse against
J. E. Trial counsel testified that, even though the juvenile court
order contained information that would be harmful to Vasquez’s
defense, he did not object to its admission because his theory of the
case was that Ruiz, not Vasquez, killed Prisi. Trial counsel believed
that the juvenile court order showing prior acts of abuse by Ruiz
supported that theory.
The record reflects that Vasquez’s trial counsel explicitly
presented this theory of the case through other avenues, as well. In
his opening statement, counsel suggested that Ruiz had coached J.
E. to make incriminating statements against Vasquez and that
other members of her family had aided Ruiz in framing Vasquez for
Prisi’s death even though they were aware that Ruiz had previously
been physically abusive toward Prisi. Vasquez’s trial counsel, in
39
cross-examining the first psychologist who interviewed J. E., elicited
testimony regarding parent coaching of young children as well as
parental alienation syndrome, which the psychologist characterized
as a form of parental manipulation in which one parent causes a
child to form negative attitudes about the other parent. The
psychologist admitted that children J. E.’s age are susceptible to
accepting and repeating suggestions made by an adult whom the
child is taught to respect that innocent adults did harmful or illegal
things to them. The psychologist admitted that such influence could
cause the child to believe and remember events that did not actually
occur. Vasquez’s trial counsel returned to these themes repeatedly
in his closing argument and explicitly discussed the juvenile court
order, and Ruiz’s history of child abuse demonstrated by the order,
as evidence that Ruiz was the actual killer.
To show that his lawyer’s performance was deficient,
[Vasquez] must demonstrate that the lawyer performed
his duties in an objectively unreasonable way, considering
all the circumstances and in the light of prevailing
professional norms. This is no easy showing, as the law
recognizes a strong presumption that counsel performed
reasonably, and [Vasquez] bears the burden of
40
overcoming this presumption. To carry this burden, he
must show that no reasonable lawyer would have done
what his lawyer did, or would have failed to do what his
lawyer did not. In particular, decisions regarding trial
tactics and strategy may form the basis for an
ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have
followed such a course.
(Citations and punctuation omitted.) State v. Spratlin, 305 Ga.
585, 591 (2) (
826 SE2d 36) (2019).
Whether the potential upside of certain evidence — in this
case, the juvenile court order establishing that Vasquez and Ruiz
had committed prior acts of abuse against J. E. — exceeds its
downside is a question of trial strategy, and Vasquez has made no
showing that his lawyer’s strategy was unreasonable. See Spratlin,
305 Ga. at 594 (2) (a). Specifically, in light of the testimony elicited
during cross-examination of the psychologist, other evidence
highlighting an alleged history of abuse by Ruiz, evidence attacking
Ruiz’s credibility, and evidence establishing Ruiz’s motive to place
blame for Prisi’s death on Vasquez, we cannot say that no reasonable
attorney would have pursued this trial strategy or used the
41
particular tactics employed by Vasquez’s counsel in this case,
including allowing evidence to come in that implicated both Ruiz
and Vasquez in prior acts of abuse. Vasquez has thus failed to show
that the performance of his trial counsel was deficient in this regard,
and this claim of ineffectiveness fails.
(b) Vasquez also argues that his trial counsel provided
ineffective assistance by failing to object when the trial court
instructed the jury that a seven-year statute of limitation applied to
the offense of concealing the death of another. “However, for the
same reasons that we concluded that [Vasquez] could not carry his
burden to show prejudice on plain error review regarding this
charge, we conclude that he cannot carry his burden to show
prejudice on this ineffectiveness claim.” Hampton v. State, 302 Ga.
166, 172 (4) (b) (
805 SE2d 902) (2017). Even if the jury had been
instructed that a four-year statute of limitation applied to the
offense of concealing the death of another, it still would have
convicted Vasquez of that offense as the only evidence of tolling
presented in the case showed that the indictment was brought
42
before the statute of limitation ran. Thus, as there is no reasonable
probability that the outcome of the trial would have been different
had trial counsel made this objection, this claim of ineffectiveness
fails.
4. Merger of Malice Murder and Child Cruelty Offenses.
Vasquez argues that his convictions for child cruelty in the first
degree should have merged with his conviction for malice murder.
But, as we have previously held, under the Drinkard test,15 these
two offenses do not merge.
Malice murder, but not cruelty to children [in the first
degree], requires proof that the defendant caused the
death of another human being. Cruelty to children [in the
first degree], but not malice murder, requires proof that
the victim was a child under the age of 18 who was caused
cruel or excessive physical or mental pain. Therefore,
each crime requires proof of at least one additional
element which the other does not. Furthermore, the
crimes of malice murder and cruelty to children [in the
first degree] are not so closely related that multiple
convictions are prohibited under other provisions of
OCGA § § 16-1-6 and 16-1-7. Accordingly, even if the same
conduct establishes the commission of both malice
murder and cruelty to children [in the first degree], the
two crimes do not merge.
15 See Drinkard v. Walker, 281 Ga. 211 (
636 SE2d 530) (2006) (adopting
“required evidence” test for determining whether two different offenses merge).
43
(Citations and punctuation omitted.) Linson v. State, 287 Ga. 881,
885-886 (4) (
700 SE2d 394) (2010). Accordingly, this enumeration is
meritless.
Judgment affirmed. All the Justices concur.
Decided June 20, 2019.
Murder. Gwinnett Superior Court. Before Judge W. Davis.
Jessica R. Towne, for appellant.
Daniel J. Porter, District Attorney, Richard A. Vandever, Lee F.
Tittsworth, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Meghan H. Hill, Assistant Attorney General, for appellee.
44
