[Cite as State v. Garcia,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 12-11-07

v.

JAIMIE GARCIA, OPINION

DEFENDANT-APPELLANT.

Appeal from Putnam County Common Pleas Court Trial Court No. 2011 CR 33

Judgment Affirmed

Date of Decision: April 12, 2012

APPEARANCES:

Esteban R. Callejas for Appellant

Todd C. Schroeder for Appellee Case No. 12-11-07

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Jaimie Garcia, aka Jaime Garcia (hereinafter,

“Garcia” or “Uncle Jaime”), appeals the judgment of the Putnam County Court of

Common Pleas after a jury found him guilty of twelve counts of gross sexual

imposition and one count of rape. On appeal, Garcia contends that the trial court

erred when it allowed incompetent juvenile witnesses to testify; when it sentenced

him to maximum consecutive sentences; when it failed to ensure a representative

sample of Hispanic Americans in the jury pool; and, he also claims he was denied

effective assistance of counsel. For the reasons set forth below, the judgment is

affirmed.

{¶2} On March 4, 2011, the Putnam County Grand Jury indicted Garcia on

sixteen counts of gross sexual imposition, each in violation of R.C. 2907.05(A)(4)

and/or (B), each a felony of the third degree, as well as two counts of rape, in

violation of R.C. 2907.02(A)(1)(b), both felonies of the first degree. The counts

for gross sexual imposition also stated that the victims were less than 13 years of

age, and the two counts of rape specified the victims were less than 10 years of

age. Prior to trial, the State dismissed two of the counts, and the indictment was

amended. Most of the counts in the indictment resulted from disclosures from

four of Garcia’s young nieces that Garcia had repeatedly inappropriately touched

and fondled their private parts, committing felony sex offenses nearly every

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weekend when they visited their Uncle Jaime, from Fall 2006 through Spring

2010. Another one of the offenses involved an incident where Garcia forced a

young nephew to touch Garcia’s penis, and one stemmed from the disclosure of

Garcia’s adult sister-in-law that Garcia had come into her room sometime in the

1980’s when she was a young girl and had put his mouth on her breast.

{¶3} A three-day jury trial was held, beginning on May 31, 2011. The jury

heard testimony from the six alleged victims of the sexual abuse, from some of the

children’s parents/guardians, from two of the children’s counselors, and from the

Van Wert County Children’s Services social worker who investigated the alleged

abuse and who had interviewed several of the children after the disclosure of the

abuse.

{¶4} Garcia and his wife had a son and two daughters, and they had a large,

extended family with several nieces who were close in age to their own daughters.

The nieces would often spend entire weekends with the Garcia family so that the

girls could play together.

{¶5} At the time of trial in 2011, niece S.A. was nearly 10 years old, and

her sister O.A. was 8-1/2 years old. They both testified that they regularly visited

Uncle Jaime’s house, often every month or even more frequently, during 2007,

2008, 2009, and 2010. They testified that Uncle Jamie would touch and rub their

“boobs,” their “private place” (their word for vagina), and their “butts,” both over

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and under their clothing. Sometimes he would kiss them, or he would touch and

rub his own penis. He also made them touch him and each other. S.A. finally

tearfully disclosed what had happened after a counselor that she had been seeing

had a conversation with her about “good touches” and “bad touches” and about the

“bathing suit test.” Their step-brother K.F., age 6 at the time of trial, only visited

Uncle Jaime one time, when he was 5 years old. K.F. testified that Uncle Jaime

took out his penis and forced him to touch it.

{¶6} Although the girls testified that these acts occurred too many times to

count, the State only charged Garcia with one count of gross sexual imposition for

each child for each year during which the abuse occurred: Counts 1, 3, 5, and 8

for S.A.; Counts 2, 4, 6, and 9 for O.A.; and Count 10 for K.F.. O.A. also alleged

that Garcia had put his finger inside her “butt” one time in 2009, resulting in

Count 7 for rape. Garcia had repeatedly warned the children not to tell anyone.

{¶7} After the investigation began, and when the other members of the

family learned of what had occurred, the other aunts asked their daughters if

anyone had ever done anything inappropriate. Three more victims admitted that

Uncle Jaime had sexually abused them.

{¶8} S.L., who was 14 at the time of the trial, testified that she had also

spent many weekends with her cousins at the Garcia home, ever since 2006. S.L.

testified to the same sexual fondling that had occurred with S.A. and O.A.. Again,

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Garcia was charged with one count of gross sexual imposition for each of the four

years S.L. testified that she had endured the abuse: Counts 13, 14, 15, and 16.

{¶9} C.A., who was also 14 at the time of trial, testified that when she was

5 years old in 2002, she visited her cousins and stayed at the Garcia home three or

four times. She testified about how Garcia would take her into the bathroom and

lock the door and how he would “make me suck his penis.” (Tr. p. 659). She

described the forced oral sex that occurred at least three times, and testified that he

had threatened to hurt her if she told anyone. (Tr. p. 651) C.A. and her family

moved to Arkansas shortly thereafter, so she did not spend any more time alone

with Uncle Jaimie. Her allegations resulted in Count 12 for rape.

{¶10} And finally, Garcia’s sister-in-law, P.A., testified that when she was

a young child in the 1980’s and Garcia was dating her sister, she was awakened

one night by Garcia standing over her with his mouth on her pre-pubescent breast.

P.A. told her mother the next day, but nothing was ever done. She never told

anyone, except for her husband, until these allegations came to light. This was

Count 11 for gross sexual imposition.

{¶11} The defense called Jonathan Morse, the Youth Pastor for Garcia’s

church, to testify as a character witness for Garcia. Mr. Morse had known Garcia

for a couple years, and he testified that Garcia had always been willing to help out

with the youth group activities and chaperoning. Mr. Morse had never seen

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anything that would make him doubt Garcia’s character or lead him to believe that

Garcia had committed these acts.

{¶12} And finally, Garcia testified in his own defense. He denied that any

of the incidents had occurred and completely maintained his innocence.

{¶13} After deliberations, the jury found Garcia guilty of 13 of the 16

counts. The jury found Garcia not guilty of Count 7 (rape of O.A.), Count 10

(gross sexual imposition of the young nephew, K.F.), and Count 11 (gross sexual

imposition of P.A.).

{¶14} On June 6, 2011, the trial court sentenced Garcia to the maximum

five year sentence for each of the twelve counts of gross sexual imposition, to run

consecutively. Garcia was sentenced to life imprisonment for the remaining count

of rape, to run consecutively and to begin after the expiration of the sixty years of

imprisonment for the sentences for gross sexual imposition.

{¶15} It is from this judgment that Garcia now appeals, raising the

following four assignments of error for our review.

First Assignment of Error

The trial court committed reversible error in allowing two incompetent, minor witnesses to testify as to acts that were highly prejudicial to [Garcia].

Second Assignment of Error

The maximum sentence is reserved for the worst offenders, and should not have been given in the case at bar

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Third Assignment of Error

The trial court failed to ensure a representative sample of Hispanic Americans in the jury pool, in violation of the U.S. Constitution 6th Amendment, which guarantees the right to a jury trial by peers.

Fourth Assignment of Error

Garcia did not receive effective assistance of counsel.

First Assignment of Error – Competency of Minor Witnesses

{¶16} In the first assignment of error, Garcia complains that two of the

young witnesses, should have been found incompetent to testify. Garcia had

requested a competency hearing for the three children who were under the age of

ten at the time of trial, S.A., age 9, O.A., age 8, and K.F., age 6. He claims that

the answers given at the competency hearing by two of the children, O.A. and

K.F., demonstrated that the trial court abused its discretion when it found them

competent to testify.

{¶17} Evid.R. 601(A) provides that every person is competent to testify

except children under ten years old “who appear incapable of receiving just

impressions of the facts and transactions respecting which they are examined, or

of relating them truly.” State v. Gutierrez, 3d Dist. No.

. In

determining whether a child under ten is competent to testify, the trial court must

take into consideration whether the child is able to (1) receive accurate

impressions of fact or to observe acts about which the child will testify, (2) recall

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those impressions or observations, (3) communicate what was observed, (4)

understand truth and falsity, and, (5) appreciate the responsibility to be truthful.

State v. Frazier,

(1991). Because the trial court has the

opportunity to observe the child's appearance, manner of responding to questions,

general demeanor and ability to relate facts accurately and truthfully, its

determination will not be reversed absent an abuse of discretion. State v. McNeill,

, 1998–Ohio–293.

{¶18} A competency hearing was held on April 27, 2011, and the trial court

questioned the children extensively on various topics, including their ages, where

they lived, their schooling, their family, their purpose in being in the courtroom,

the importance of telling the truth, the difference between the truth and a lie, and

the consequences of telling a lie. (Apr. 27, 2011 Tr., pp. 10-68) The trial court

also questioned each child as to the allegations that they were making, about what

Garcia had done to them, whether what they were saying about Garcia was the

truth, and whether they had been told what to say by someone. Based upon this

detailed voir dire process, the trial court found all three of the children competent

to testify.

{¶19} Our review of the record finds that the answers the children provided

were clear, accurate, consistent, and met all of the requirements of the criteria set

forth in Frazier. O.A.’s answers were extremely accurate and straightforward.

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Garcia did not find fault with her answers, but instead attempts to allude that she

had been “coached” and that she had changed her story. However, the trial court

also questioned each child in detail as to this, and the record does not support this

assertion. For example, during O.A.’s voir dire, the following exchange occurred:

Q. Did [the prosecutor] tell you what to say?

A. No.

Q. Okay. What did [the prosecutor] tell you about coming in and talking to me or what you should say, do you remember? Did he tell you anything?

A. Yeah.

Q. What did he tell you?

A. To be brave.

Q. Pardon?

A. To be brave.

Q. To be brave, okay. Did he tell you anything else?

A. Just to tell the truth.

Q. To tell the truth, okay. And did you tell the truth to [the prosecutor]?

A. Yes.

Q. And are you telling the truth today?

A. Yes.

(Id. at pp. 46-47)

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{¶20} K.F., being the youngest, sometimes did not seem to understand how

to answer when first questioned. Garcia takes several of his answers out of

context and asserts that this indicates that he was not competent to testify.

However, when the trial court would then rephrase a question, or state it in a

manner that was more easily understood by the child, K.F. would usually answer

appropriately.

{¶21} We do not find that the trial court abused its discretion when it found

that K.F. was competent to testify. In any case, even if it would have been error to

allow K.F.’s testimony, the issue was moot because the jury found Garcia not

guilty of the single count involving K.F. and his testimony. K.F.’s testimony

considering the touching was definite, consistent, and corroborated by his two

step-sisters. However, there was some discrepancy as to whether it occurred in the

spring or the fall, and the jury returned a “not guilty” verdict. K.F. did not testify

as to any of the other counts, so his testimony did not involve any prejudice.

{¶22} O.A.’s answers, both at the competency hearing and at trial, were

consistently sure, clear and consistent. Furthermore, O.A.’s disclosure of what

Garcia had done to her was also before the trial court in testimony from her

custodial grandmother, her counselor, and her sister. Therefore, even without

O.A.’s testimony, the jury would have heard the evidence of Garcia’s sexual

abuse.

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{¶23} The trial court did not abuse its discretion when it found the that

O.A. and K.F. were competent to testify. For the reasons stated above, the first

assignment of error is overruled.

Second Assignment of Error-- Sentencing

{¶24} Garcia asserts that R.C. 2929.14(B) states that maximum consecutive

sentences are only to be imposed “upon offenders who committed the worst forms

of the offense * * *.”

He maintains that he never caused any physical harm,

and that his actions did not constitute the worst form of the offense. Furthermore,

there was no need to protect “the public” because there was no evidence that

Garcia had ever harmed a stranger, and he had even served as an exemplary

chaperone for his church’s youth group. Garcia also complains that the trial court

failed to make “detailed findings as required by R.C. 2929.19.” (Appellant’s

Brief, p. 12)

{¶25} Ever since the Ohio Supreme Court's ruling in State v. Foster,

, 2006–Ohio–856, “trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or

give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Mathis,

, 2006–Ohio–855, ¶ 37. In Foster,

the Ohio Supreme Court “excised as unconstitutional R.C. 2929.14(B), (C), and

(E)(4), which were portions of Ohio's felony sentencing laws that required the trial

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court to make findings when imposing nonminimum, maximum, and consecutive

sentences respectively.” State v. Kalish,

,

, ¶

56, citing

; State v. Hodge,

,

.

{¶26} Courts, nevertheless, are still required to comply with the sentencing

laws unaffected by Foster, such as R.C. 2929.11 and 2929.12, which require

consideration of the purposes and principles of felony sentencing and the

seriousness and recidivism factors.

. However, a sentencing court

does not have to make any specific findings to demonstrate its consideration of

those general guidance statutes.

.

{¶27} R.C. 2929.11 provides that sentences for a felony shall be guided by

the overriding purposes of felony sentencing: “to protect the public from future

crime by the offender and others and to punish the offender.” R.C. 2929.11(A). In

order to comply with those purposes and principles, R.C. 2929.12 instructs a trial

court to consider various factors set forth in the statute relating to the seriousness

of the conduct and to the likelihood of the offender's recidivism. R.C. 2929.12(A)

through (D). In addition, a trial court may consider any other factors that are

relevant to achieving the purposes and principles of sentencing. R.C. 2929.12(E).

{¶28} Garcia’s basis for this assignment of error cites to statutes that are no

longer the law in Ohio. And, although not required to make any “findings,” the

trial court did discuss the reasons why it imposed the sentences that it did, stating

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that Garcia’s behavior involved multiple sex offenses; that Garcia had shown no

remorse; that he had previously been non-compliant to community control

sanctions; that “the injury to the victims, being at very young ages, was worsened

by the ages of these victims and the fact that the repeated sexual acts of the

defendant resulted in significant harm to each of these victims”; that the victims

suffered significant psychological harm; that there were multiple victims over an

extended period of many years; and, that he used his family relationship to

facilitate the offenses. (June 6, 2011 Sentencing Transcript, pp. 16-19)

{¶29} The record demonstrates that the trial court fully complied with all of

the applicable statutory requirements pertaining to the imposition of Garcia’s

sentences. The second assignment of error is overruled.

Third Assignment of Error – Jury Pool

{¶30} In this assignment of error, Garcia alleges that the trial court failed to

ensure a representative sample of Hispanics in the jury pool, which he asserts is a

violation of his Sixth Amendment rights to have a jury drawn from a

representative cross-section of the community. Garcia states that all 47 members

of the jury pool were Caucasian and none were Hispanic. Garcia complains that

he “had no opportunity to cross examine the Court as to its jury selection process”

but now asserts that the jury selection process “was not random, was flawed, and

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produced a racially discriminatory jury by excluding Hispanics.” (Appellant’s Br.,

p. 14)

{¶31} The “selection of a petit jury from a representative cross-section of

the community is an essential component of the Sixth Amendment right to a jury

trial.” Taylor v. Louisiana,

,

,

(1975). Thus, “the jury wheels, pools of names, panels, or venires from which

juries are drawn must not systematically exclude distinctive groups in the

community.”

. However, there is “no requirement that petit juries

actually chosen must mirror the community and reflect the various distinctive

groups in the population,” nor is there any right to “a jury of any particular

composition.”

“The Sixth Amendment guarantees only the opportunity for a

representative jury, not a representative jury itself. * * * The focus, therefore, is

properly placed on the procedure of selecting juries, not on the outcome of that

process.” Phillips v. Value City Stores, Inc. (Sept. 16, 1997), Franklin App. No.

96APE12–1711,

, at *6.

{¶32} Four years after the Taylor decision, the United States Supreme

Court established a three-part test to demonstrate a prima facie violation of the fair

cross-section requirement: (1) the defendant must show that the group alleged to

be excluded is a “distinctive” group in the community; (2) the representation of

this group in venires from which juries are selected is not fair and reasonable in

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relation to the number of persons in the community; and (3) the under-

representation is due to systematic exclusion of the group in the jury selection

process. Duren v. Mississippi,

,

,

(1979). In 1991, the Ohio Supreme Court adopted this test in State v. Fulton,

(1991), paragraph two of the syllabus.

{¶33} Ohio's statutory scheme for the selection of jurors is based upon the

principle that qualified jurors will be selected in a random manner. See R.C.

Chapter 2313. Crim.R. 24(F) provides that a prosecutor or a defense attorney

“may challenge the array of petit jurors on the ground that it was not selected,

drawn or summoned in accordance with law.” However, such a challenge must

“be made before the examination of the jurors” on voir dire. Id.; State v. Gulley,

12th Dist. No. CA2005–07–066,

.

{¶34} Garcia has not provided any evidence, facts, or statistics to support

any of his bare assertions. Garcia did not attempt to establish that the Hispanic

population is a “distinctive” group in Putnam County. Even if we were to concede

this first prong, Garcia failed to present any statistical data which would support

his claim that the jury composition was not representative of the population as a

whole. Lastly, Garcia failed to provide any evidence that there has been a

systematic exclusion of Hispanics from the jury-selection process. See State v.

Stockton, 3d Dist. No. 17-96-15,

; State v. Hairston, 9th Dist.

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No. 05CA008768,

. Garcia’s unsubstantiated claims as

to under-representation, pointing solely to his own jury venue, do not demonstrate

any systematic exclusion over time.

{¶35} In Fulton, the Ohio Supreme Court further stated that:

“[a] defendant may also reasonably bring a federal equal protection challenge to the selection and composition of the petit jury by adducing statistical evidence which shows a significant discrepancy between the percentage of a certain class of people in the community and the percentage of that class on the jury venires, which evidence tends to show discriminatory purpose, an essential element of such cases.” Fulton,

.

{¶36} Again, Garcia did not provide any statistical data to show the

“underrepresentation [of a distinct group] over a significant period of time” or

“expose[ ] the selection procedure as susceptible of abuse or racially partial.” State

v. McNeil,

(1998), citing Fulton,

.

Accordingly, any claimed challenge under the Fourteenth Amendment also fails.

{¶37} Garcia has failed to support his argument with any statistical data or

facts, whatsoever. The third assignment of error is overruled.

Fourth Assignment of Error – Ineffective Assistance of Counsel

{¶38} In the final assignment of error, Garcia claims his counsel’s

representation fell below an objective standard of reasonableness when counsel

failed to object to a jury which “was not properly selected and failed to produce

any Hispanics.” (Appellant’s Br., p. 15) He claims that had counsel objected and

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a “proper jury” been seated, Garcia “would have received a fair trial and would

not have been convicted.” (Id.)

{¶39} To establish ineffective assistance of counsel, a defendant must show

(1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable

probability that but for counsel's errors, the proceeding's result would have been

different. Strickland v. Washington,

, 687–688, 694,

,

(1984); State v. Bradley,

(1989), paragraphs

two and three of the syllabus. There is a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance, and that

strategy and tactical decisions exercised by defense counsel are well within the

range of professionally reasonable judgment and need not be analyzed by a

reviewing court. State v. Robinson,

(3d Dist. 1996).

{¶40} As our disposition of the third assignment of error indicated, there

was no evidence of any error in the selection of the jury pool, so there was no

valid reason for counsel to raise an objection. Therefore, counsel was not

ineffective for failing to object. Furthermore, Garcia’s’ statement alleges that he

would not have been convicted if he “would have received a fair trial.” However,

he does not present any evidence or arguments that would indicate that this trial

was not fair in every way, or why a different jury would have reached a different

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result. His unsupported and unfounded allegation of prejudice does not meet the

standards necessary to find ineffective assistance of counsel. The fourth

assignment of error is overruled.

{¶41} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr

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