FOURTH DIVISION

DOYLE, P. J.,

MILLER and DILLARD, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

October 17, 2014

In the Court of Appeals of Georgia

A14A1375. THE STATE v. MARTINEZ-PALOMINO.

MILLER, Judge.

Following a jury trial, Angel Martinez-Palomino was convicted of kidnapping

(OCGA § 16-5-40 (a)), aggravated child molestation (OCGA § 16-6-4 (c)), and child

molestation (OCGA § 16-6-4 (a) (1)).1 The State appeals from the trial court’s grant

of Martinez-Palomino’s motion for new trial, as amended, on the basis that the court

erred in allowing a video recording of the child victim’s forensic interview to be

played during jury deliberations. The State contends that there was no error in

1 The jury also found Martinez-Palomino guilty of aggravated sexual battery

and another count of child molestation, and the trial court merged these counts into

the aggravated child molestation conviction for sentencing purposes. The trial court

also granted a directed verdict as to a third child molestation charge and declared a

mistrial as to the offense of enticing a child for indecent purposes. 
allowing the jury to view the video because the recording was properly admitted into

evidence, the child victimand forensic interviewer testified at trial and were available

for cross-examination, and defense counsel agreed to allow the video recording to be

played to the jury during its deliberations.

2 For the reasonsthat follow, we reverse the

trial court’s grant of Martinez-Palomino’s motion for new trial because there was no

error in allowing the jury to view the video. 

We review the grant of a motion for new trial on special grounds involving a

question of law de novo and reverse if the trial court committed legal error. State v.

Clements, 289 Ga. 640 (1) (715 SE2d 59) (2011) (motion for new trial based on

failure to dismiss juror); O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009)

(motion for new trial based on prior denial of motion to sever).

2 At the outset, we address Martinez-Palomino’s motion to dismiss the appeal

on the grounds that the State failed to include enumerations of error in its brief, as is

required by Court of Appeals Rule 22 (a) and Rule 25 (a) (2). Notwithstanding the

State’s failure to include an enumeration of errors in its brief, this Court is required

to consider the appeal because we can discern from the State’s brief and the record

the errorsthat the State is asserting on appeal. See OCGA § 5-6-48 (f). Consequently,

we deny Martinez-Palomino’s motion to dismiss the appeal. See, e.g., Jackson v.

State, 314 Ga. App. 272, n.1 (724 SE2d 9) (2012); State v. Madison, 311 Ga. App.

31, 32 (1) (714 SE2d 714) (2011). We also deny Martinez-Palomino’s motion to

strike the State’s response to his motion to dismiss for failure to include a certificate

of service because the State re-filed its response to include such a certificate. 

2
Viewed in the light most favorable to the jury’s verdict,

3

 the evidence shows

that Martinez-Palomino and his girlfriend,Raquel Magos,were friends with and lived

at the sameGainesville apartment complex asthe victim’sfamily. Martinez-Palomino

was also a maintenance worker at the apartment complex. 

On June 23, 2010, the then 12-year-old victim left her apartment and went for

a walk. On her walk, the victim encountered Martinez-Palomino and his co-worker

at the apartment complex mailboxes. Martinez-Palomino asked the victim if she

wanted a cup of water, and the victim responded affirmatively. The victim then went

with Martinez-Palomino and the co-worker to Martinez-Palomino’s apartment. 

At the apartment, Martinez-Palomino and his co-worker ate their lunch while

the victim drank her water. At some point, the co-worker went out the front door to

make a phone call. The victim then finished her water, thanked Martinez-Palomino,

and turned to leave out the front door. Before the victim was able to reach the front

door, however, Martinez-Palomino pulled her back by the waist and threw her onto

the couch. Martinez-Palomino started kissing the victim on her mouth and neck and

attempted to bite her mouth and ear. Martinez-Palomino then grabbed the victim by

3

 Jackson, supra, 314 Ga. App. at 272. 

3
her chest, under her breasts, and forced her down the hall and into the bathroom. The

victim testified that she was scared and wanted to leave. 

Inside the bathroom, Martinez-Palomino pulled down the victim’s shorts and

underwear to her knees. Martinez-Palomino then sat the victim down on the sink and

pulled down his pants and underwear. Martinez-Palomino inserted hisfinger into the

victim’s vagina, causing pain to the victim.Martinez-Palomino thenmasturbated, and

as he ejaculated, someone knocked on the front door. Martinez-Palomino pulled his

finger out of the victim’s vagina, cleaned himself, and pulled up his pants. When the

victim tried to scream, Martinez-Palomino put his hand over the victim’s mouth and

told her to shut up. Martinez-Palomino then exited the bathroom and went to answer

the door. While Martinez-Palomino was at the front door, the victim pulled up her

pants, fled out the back door, and returned home. The victim did not immediately tell

anyone about the incident. 

Later that evening, Magos confronted the victim by the apartment complex

pool regarding the victim’s sexual assault. Magos told the victim that MartinezPalomino told her what happened. Magos blamed the victim and threatened her.

When Magos left, the victim began to cry, and a neighbor asked her what was wrong.

The victim told the neighbor that she was sexually assaulted by Martinez-Palomino.

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The neighbor convinced the victim to tell her mother about the incident, and the

mother reported the incident to the police. 

The victim was subsequently taken to the hospital for a sexual assault exam.

The examining nurse found several injuries that were consistent with the sexual

assault reported by the victim. Two weeks after the incident, Dr. Julie Battle

performed a forensic interview of the victim. The videotaped interview was admitted

into evidence in its entirety without objection and a portion of the video was played

for the jury before it was stopped because of poor audio quality. Dr. Battle then

testified thatshe made a very detailed report of the interview, during which the victim

recounted that she was sexually assaulted by Martinez-Palomino. 

At trial, while the jury deliberated, it requested to see the video recording of the

forensic interview. Martinez-Palomino, who had earlier indicated that he would agree

to allow the jury to see the video if requested, did not object to the playing of the

video during jury deliberations. The video wasthen played in open court, and the jury

returned to their deliberations after the video concluded.

Following the jury’s verdict, Martinez-Palomino filed a motion for new trial

asserting, inter alia, that the trial court erred in allowing the jury to view the video of

the forensic interview during jury deliberations. The motion for new trial was heard

5
by a different judge who did not preside over the original trial. This new judge

granted Martinez-Palomino’s motion for new trial on the special ground that the

original judge erred by allowing the entire video recording of the child victim’s

forensic interview to be played during jury deliberations. The State now appeals. 

The State contends that the trial court erred in granting Martinez-Palomino’s

motion for new trial because there was no error in allowing the jury to view the video

in its entirety during jury deliberations. We agree.

As a preliminarymatter, Martinez-Palomino did not object to the playing of the

video during deliberations at the jury’s request. In fact, when the trial court stopped

playing the recording at trial because of poor audio quality, Martinez-Palomino

expressly indicated that he would not object to playing the video at a later time if the

jury requested it. “A defendant will not be allowed to induce an asserted error, sit

silently hoping for acquittal, and obtain a new trial when that tactic fails.” (Footnote

omitted.) Buchanan v. State, 254 Ga. App. 249, 251 (2) (562 SE2d 216) (2002); see

also Westmoreland v. State, 192 Ga. App. 173, 176-177 (2) (b) (384 SE2d 249)

(1989) (“[a] party cannot claim error where he himself committed or invited the

error.”) (punctuation omitted). 

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Nevertheless, even assuming Martinez-Palomino did not invite the alleged

error, it is well-established that it is permissible for the trial judge, in his discretion,

to permit the jury at their instigation to rehear requested parts of the evidence after

they have retired and begun deliberations, so long as it is done in open court. Lopez

v. State, 291 Ga. App. 210, 214 (3) (661 SE2d 618) (2008); Summage v. State, 248

Ga. App. 559, 561 (1) (546 SE2d 910) (2001). In this case, the trial court followed

“the standard practice, [which] is to bring the jury back into open court to rehear

recorded evidence[.]” Bridges v. State, 279 Ga. 351, 353 (2) (613 SE2d 621) (2005). 

To show that the trial court’s actions were an abuse of discretion, MartinezPalomino was required to show that there were “special circumstances” that would

make it unjust to allow the jury to view the video. See Watkins v. State, 273 Ga. 307,

310 (3) (540 SE2d 199) (2001); Martin v. State, 240 Ga. App. 901, 904 (2) (525 SE2d

728) (1999). He failed to make such a showing. The jury already heard the victim’s

testimony about the sexual abuse, as well as Dr. Battle’s testimony regarding the

forensic interview. While Martinez-Palomino argues that the jury heard improper

character evidence regarding his proclivity for violence and sexual promiscuousness

that it did not initially hear upon the initial playing of the video, the jury was entitled

to consider the victim’s out-of-court statements as substantive evidence under the

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Child Hearsay Statute, former OCGA § 24-3-16.

4 See Lopez, supra, 291 Ga. App. at

212 (1). This “material evidence [did] not become inadmissible simply because it

incidentally place[d] [Martinez-Palomino’s] character in issue.” (Punctuation and

footnote omitted.) Johnson v. State, 268 Ga. App. 1, 6 (1) (d) (601 SE2d 392) (2004). 

Moreover, trial counsel testified at the motion for new trial hearing that he did

not object to the playing of the tape because there were some inconsistencies between

the victim’strial testimony and her interview statements and the victimdid not appear

credible during her interview, factors that trial counsel believed would be beneficial

to Martinez-Palomino’s defense. Additionally, the victim testified at trial and was

subject to extensive cross-examination. Therefore, Martinez-Palomino had a full

opportunity to confront the victim and his right to a fair trial was safeguarded. See

4

 Former OCGA § 24-3-16 provided that

[a] statement made by a child under the age of 14 years describing any

act of sexual contact or physical abuse performed with or on the child

by another . . . is admissible in evidence by the testimony of the person

or persons to whom made if the child is available to testify in the

proceedings and the court finds that the circumstances of the statement

provide sufficient indicia of reliability.

There was no challenge, much less evidence presented, that the taped interview

lacked an indicia of reliability, and, as indicated above, Martinez-Palomino did not

object to its admission. 

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Phillips v. State, 284 Ga. App. 224, 227-228 (1) (b) (644 SE2d 153) (2007) (affirming

admission of videotaped interview of child victim into evidence and concluding that

defendant’s confrontation rights were not violated since the victim testified at trial).

Consequently, Martinez-Palomino failed to establish the existence of special

circumstances making it unjust for the jury to view the video during deliberations. 

Even if the trial court erred in playing the video during deliberations, “error

alone is not automatically grounds for a new trial but is subject to scrutiny for

harmless error.” (Citations and punctuation omitted.) Tanner v. State, 243 Ga. App.

640, 643 (2) (533 SE2d 794) (2000). Where there is strong evidence of the

defendant’s guilt, the admission of improper evidence is harmless error when it is

highly unlikely thatsuch evidence contributed to the verdict. Holden v. State, 314 Ga.

App. 36, 39 (2) (722 SE2d 873) (2012). Here, the victim testified that MartinezPalomino sexually assaulted her and the physical examination of the victim

corroborated her testimony. Therefore, it is highly unlikely that the playing of the

videotape that contained bad character evidence contributed to the verdict, and any

error that may have occurred in playing the video during deliberations was harmless.

Accordingly, the trial judge erred in concluding that Martinez-Palomino was entitled

to a new trial.

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Judgment reversed. Doyle, P. J., and Dillard, J., concur.

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