DAMEROW v. State, 310 Ga. App. 530

Background

Damerow was the stepfather of 15-year-old J.S. and claimed by the State to have molested her beginning in 2006 when she was 13–14.
J.S. testified that Damerow grabbed her buttocks, forced kissing, and escalated to touching and kissing her in her bedroom, with threats to kill her and her family if she disclosed.
The conduct occurred while Damerow lived with J.S. and her mother, with a period of removal and later reentry into the home in 2007.
J.S. disclosed the molestation to her mother; DFACS counseling followed; a police investigation led to Damerow’s arrest and charges on three counts of child molestation.
Damerow testified and denied the allegations; the forensic interview of J.S. was videotaped and played at trial; the jury acquitted him on two counts but convicted on one count.
Damerow raised multiple trial issues on appeal, including sufficiency of evidence, jury instruction on credibility, admissibility of prior convictions, and ineffective assistance of counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence	Damerow argues evidence fails to prove molestation.	State contends testimony supported a conviction under OCGA § 16-6-4(a).	Evidence sufficient; verdict authorized.
Pattern jury instruction on witness credibility	Trial court failed to give complete credibility pattern charge.	No error where defense did not request full pattern charge.	No reversible error; lack of request allowed abbreviated charge.
Impeachment by prior convictions	Admission of prior convictions improperly affected credibility.	Convictions admissible under OCGA 24-9-84.1(a)(3); issue waived by stipulation.	Waived; or, in any case, admissible under statute; no reversible error.
Ineffective assistance of counsel	Counsel failed to object to bolstering testimony and other trial deficiencies.	Counsel's strategy and cross-examination mitigated prejudice; no ineffective assistance proven.	No reversible error; defense strategy reasonable; acquittal on two counts supports this.

Key Cases Cited

Fogerty v. State, 304 Ga.App. 546 (Ga. Ct. App. 2010) (viewing evidence in the light most favorable to verdict; no weight of evidence analysis by appellate court)
Rutland v. State, 296 Ga.App. 471 (Ga. Ct. App. 2009) (new trial standard as 'thirteenth juror' not to be used casually)
Duggan v. State, 285 Ga. 363 (Ga. 2009) (prior consistent statements; timing with alleged fabrication matters)
Connelly v. State, 295 Ga.App. 765 (Ga. Ct. App. 2009) (evidentiary rulings for witness credibility; cross-examination limits)
Chauncey v. State, 283 Ga.App. 217 (Ga. Ct. App. 2007) (evaluating expert-like testimony on credibility; limits of bolstering)
Mullins v. State, 298 Ga.App. 368 (Ga. Ct. App. 2009) (cross-examination as a vehicle to test credibility)
Williams v. State, 290 Ga.App. 841 (Ga. Ct. App. 2008) (allowing non-impermissible bolstering in some contexts)
Gregoire v. State, 309 Ga.App. 309 (Ga. Ct. App. 2011) (tactical decisions in handling credibility and cross-examination)
Boatright v. State, 308 Ga.App. 266 (Ga. Ct. App. 2011) (trial strategy and non-prejudicial cumulative error considerations)
Henderson v. State, 303 Ga.App. 898 (Ga. Ct. App. 2010) (evaluating effective assistance claims in light of trial strategy)
Fennell v. State, 271 Ga.App. 797 (Ga. Ct. App. 2005) (prosecutor comments in closing argument and strategy considerations)
Whatley v. State, 296 Ga.App. 72 (Ga. Ct. App. 2009) (prior convictions admissible to impeach credibility under statute)
Habersham v. State, 289 Ga.App. 718 (Ga. Ct. App. 2008) (prior conviction admissibility for impeachment when crimes involve dishonesty)
Scott v. State, 277 Ga.App. 876 (Ga. Ct. App. 2006) (theft by deception as evidence of dishonesty affecting credibility)
Hall v. State, 180 Ga.App. 210 (Ga. Ct. App. 1986) (moral turpitude and credibility considerations for prior offenses)
Whatley v. State, 296 Ga.App. 72 (2009) (admissibility of prior convictions for impeachment)