FIFTH DIVISION

MERCIER, C. J.,

MCFADDEN, P. J., and RICKMAN, J.

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

June 20, 2024

In the Court of Appeals of Georgia

A24A0503. PADILLA-GARCIA v. THE STATE.

RICKMAN, Judge.

Quebin Ines Padilla-Garcia was tried by a jury and convicted of aggravated

sexual battery and child molestation. On appeal, Padilla-Garcia contends that the trial

court erred in its instructions to the jury and that he must be re-sentenced because a

special condition of his probation is unlawful.1For the following reasons, we affirm his

convictions, vacate a special condition of his probation, and remand for resentencing.

On appeal from a criminal conviction, we view the evidence in the light

most favorable to support the jury’s verdict, and the defendant no longer

1 This is the second appearance of this case before this Court. In Padilla-Garcia

v. State, 369 Ga. App. 244 (893 SE2d 152) (2023), we vacated the trial court’s order

denying his motion for new trial to conduct the proper analysis of Padilla-Garcia’s

constitutional speedy trial claim. Padilla-Garcia, 369 Ga. App. at 247.
enjoys a presumption of innocence. We do not weigh the evidence or

judge the credibility of the witnesses, but determine only whether the

evidence authorized the jury to find the defendant guilty of the crimes

beyond a reasonable doubt in accordance with the standard set forth in

Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Johnson v. State, 340 Ga. App. 429, 430 (797

SE2d 666) (2017).

So viewed, Padilla-Garcia rented a room in the seven year old victim’s home.

The victim’s mother rented the room to earn some extra money to help with the

victim’s upcoming birthday expenses.

One day in May 2020, the victim, the victim’s mother, and Padilla-Garcia were

watching a movie together in the victim’s living room. At some point, the victim’s

mother left the room to take a phone call. After the victim’s mother left, PadillaGarcia told the victim that he was going to touch his bottom. The victim told PadillaGarcia “no,” but Padilla-Garcia pulled him into his lap. The victim testified that

Padilla-Garcia “started touching me so hard. I said that I was going to tell my mom,

and ... he said no. And he did it more harder.” The victim testified that he did not

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consent to the touching. The victim further testified that Padilla-Garcia was touching

him on the inside of his bottom and that the touching hurt.

When the victim’s mother returned, the victim told her that Padilla-Garcia

touched his bottom. The victim then went to his neighbor’s house where he repeated

what Padilla-Garcia had done to his neighbor. The victim went to the hospital for a

sexual assault nurse’s exam. The SANE nurse testified that the victim reported that

Padilla-Garcia touched him inside his bottom. The SANE nurse took a sample from

the victim’s perianus.

A forensic biologist testified that he tested and compared swabs containing

Padilla-Garcia’s DNA with the swabs from the victim’s anus/perianus. PadillaGarcia’s DNAprofile matched the DNAprofile found on the victim’s anus/perianus.

A grand jury indicted Padilla-Garcia for aggravated sexual battery and child

molestation. Padilla-Garcia was convicted on both counts. Padilla-Garcia filed a

motion for newtrial, which was denied by the trial court.Padilla-Garcia appealed from

that order and this Court remanded the case back to the trial court. See Padilla-Garcia

v. State, 369 Ga. App. 244 (893 SE2d 152) (2023). Following remand, the trial court

again denied Padilla-Garcia’s motion. This appeal followed.

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1. Padilla-Garcia contends that the trial court erred by instructing the jury in

two ways: (a) as to the definition of aggravated sexual battery and (b) in telling them

that “consent of the victim is not a defense to this crime.” We will address each in

turn.

(a) On the date of the crime, OCGA § 16-6-22.2 defined aggravated sexual

battery as,

(a) For the purposes of this Code section, the term “foreign object”

means any article or instrument other than the sexual organ of a person.

(b) A person commits the offense of aggravated sexual battery when he

or she intentionally penetrates with a foreign object the sexual organ or

anus of another person without the consent of that person. (c) A person

convicted of the offense of aggravated sexual battery shall be punished

by imprisonment for life or by a split sentence that is a term of

imprisonment for not less than 25 years and not exceeding life

imprisonment, followed by probation for life, and shall be subject to the

sentencing and punishment provisions of Code Sections 17-10-6.1 and

17-10-7.

OCGA § 16-6-22.2 (d) (2020). In between the date of the crime and the date of trial,

the legislature added the following subsection to OCGA § 16-6-22.2,

(d) When the alleged victim is under the age of 16 years and the conduct

is for the purpose of sexual arousal on the part of the alleged offender or

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alleged victim, consent of the alleged victim shall not be a defense to a

prosecution under this Code section; provided, however, that if at the

time of the offense the alleged victim is at least 13 but less than 16 years

of age and the accused is 18 years of age or younger and no more than 48

months older than the alleged victim, this subsection shall not be

applicable.

OCGA § 16-6-22.2 (d) (2023).

Padilla-Garcia argues that the trial court erred because it gave the jury the

amended definition ofthe crime rather than the statutory definition ofthe crime at the

time it was committed, thus relieving the State of the burden of proving lack of

consent.

“[I]n general, a crime is to be construed and punished according to the

provisions of the law existing at the time of its commission.” (Citation and

punctuation omitted.) Torres v. State, 361 Ga. App. 149, 154 (863 SE2d 399) (2021).

Accordingly, the trial court erroneously instructedthe jury that “consent ofthe victim

is not a defense to this crime.”

Because Padilla-Garcia made no objection to the charge, we review it for plain

error. See Vasquez v. State, 306 Ga. 216, 225 (2) (830 SE2d 143) (2019). We apply a

four-part test when evaluating alleged plain errors in jury charges;

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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 ofjudicial proceedings.

(Citation and punctuation omitted.) Id.

Pretermitting whether this was an error that has not been relinquished or

abandoned and whether it was clear or obvious, Padilla-Garcia cannot show that the

error affected the outcome of the trial court proceedings.

“While relieving the State from proving an element of the crime can certainly

be harmful error affecting the outcome of a proceeding it is unlikely, given the

evidencepresentedinthis case, that the instruction at issue affected[Padilla-Garcia’s]

substantial rights.” (Citation, punctuation, and footnote omitted.) State v. Williams,

308 Ga. 228, 232 (2) (838 SE2d 764) (2020). Here, the victim was seven years old

when Padilla-Garcia intentionally penetrated his anus with his finger, the victim

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testified that he did not consent to the conduct, and the victim testified that he

experiencedsubstantial pain from the experience.Additionally, Padilla-Garcia did not

claim that the touching was consensual or for some non-sexual purpose.Accordingly,

under the circumstances of this case, considering the age of the victim, that the

conductwas obviously sexual in nature, and that the evidence of guilt was very strong,

it is unlikely the trial court’sinstruction affected the outcome of the proceeding. See

id.

(b) Alternatively, Padilla-Garcia contends that the trial court improperly

prejudged the facts by instructing the jury that consent of the victim is not a defense

to the crime.

“It is error for any judge, during any phase of any criminal case, to express or

intimate to the jury the judge’s opinion as to whether a fact at issue has or has not

been proved or as to the guilt of the accused.” OCGA § 17-8-57 (a) (1). Failure to

make a timely objection to an alleged violation of OCGA § 17-8-57 (a) (1) waives

appellate review, unless such a violation constitutes plain error. See OCGA § 17-8-57

(b).

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As in Division 1 (a), pretermitting whether the trial court erred and was a clear

and obvious violation of OCGA§ 17-8-57 (a) (1), Padilla-Garcia cannot prove that the

trial court’s allegedly improper judicial comment affected the outcome of the

proceedings. See Willis v. State, 304 Ga. 122, 129 (2) (c) (816 SE2d 656) (2018).

2. Padilla-Garcia contends that he must be re-sentenced because the special

conditions of his probation prohibiting contact with minors is unlawful because it is

overly broad and lacks specificity. We agree that the condition at issue must be

vacated.

A trial court has broad discretion in sentencing to impose conditions

reasonably related to the nature and circumstances of the offense and

rehabilitative goals of probation.But such conditions must be statedwith

reasonable specificity to afford the probationer notice of the groups and

places he must avoid.And the conditions must not be so broadly worded

as to encompass groups and places not rationally related to the purpose

of the sentencing objective.

(Citation and punctuation omitted.) Bryant v. State, 363 Ga. App. 349, 352 (2) 870

SE2d 33) (2022).

The special condition at issue prohibits “unsupervised contact, whether

directly in person or indirectly through any means of communication or through

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employment, volunteer activity or otherwise with any child under the age of sixteen

(16), including your own children, nor with any person unable to give consent because

of mental or emotional limitations.” 

Here, the special condition at issue fails to put Padilla-Garcia on notice of the

groups and places he is required to avoid. The condition “could be applied to prohibit

[Padilla-Garcia] from shopping at virtually any store, visiting any restaurant, or

literally going to any other location in which [Padilla-Garcia] would come into contact

with the general public.” (Citation and punctuation omitted.) Bryant, 363 Ga. App.

at 353 (2). Accordingly, because the special condition is too broad, we vacate the

special condition, and remand this case to the trial court for re-sentencing only as to

the vacated condition. See Bryan v. State, ___ Ga. App. ___ (5) (Case No.

A24A0048; decided June 5, 2024; Bryant, 363 Ga. App. at 354 (3).

Judgment affirmed in part, sentence vacated in part; and case remanded for

resentencing. Mercier, C. J., and McFadden, P. J., concur.

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