David Michael Alvarado was indicted on two counts of aggravated sodomy, one count of aggravated child molestation, and three counts of child molestation. All of the charges involved the seven-year-old son of Alvarado’s girlfriend. A jury convicted Alvarado of all six counts, and the trial court sentenced him to a total of sixty years imprisonment and twenty years probation, as follows: twenty years to serve for Count 1 (aggravated sodomy); twenty years for Count 2 (aggravated sodomy), to be served consecutively; twenty years each for Counts 4 and 5 (child molestation), to be served concurrently with the sentence on the first two counts; and twenty years probation for Count 6 (child molestation).
1
Alvarado filed a motion for a new trial, which the court denied. However, as a result of
Brewer v. State,
1. First, we disagree with Alvarado’s contention that the court improperly enhanced his sentence on resentencing. Based on the Supreme Court’s decision in Brewer v. State, supra, the trial court was forced to vacate Alvarado’s conviction and sentence on the two counts of aggravated sodomy. In Brewer, the Court overruled existing precedent and held that a person could not be convicted of aggravated sodomy involving an underage victim without proof of force. Id. at 607. As a result, the trial court found, and the state conceded, that there was insufficient evidence that Alvarado used force against his young victim in connection with the charges of aggravated sodomy. Because that conviction was vacated, the merger doctrine no longer applied to Alvarado’s conviction of aggravated child molestation, and the trial court sentenced him to 20 years to serve on that count. Additionally, the trial court ordered that the two twenty-year sentences for child molestation (Counts 4 and 5) run consecutively, rather than *811 concurrently, to the twenty-year sentence for aggravated child molestation (Count 3).
Contrary to Alvarado’s argument, we conclude that the court did not err in resentencing him. We agree that a prohibition exists against the imposition of a more severe sentence as a result of vindictiveness against a defendant for successfully attacking his conviction. See
North Carolina v. Pearce,
We affirmed a similar resentence in
Duffey v. State,
2. Next, Alvarado maintains that the court erred in admitting evidence that he kept pornographic material in his home. He argues that his character was improperly impugned by the victim’s mother’s testimony that Alvarado possessed pornographic videos. We disagree.
On cross-examination, Alvarado’s counsel asked T. H., the victim’s mother and Alvarado’s former girlfriend, if she ever brought pornographic material into the home she shared with Alvarado. T. H. answered that a man had given her pornographic magazines to give to Alvarado, and that the magazines were kept next to Alvarado’s side of the bed. Subsequently, the state asked T. H. if there was any other pornographic material in the home, and she responded that Alvarado possessed explicit videos depicting sexual acts between men.
Contrary to Alvarado’s argument, we do not find that the court erred in admitting the testimony at issue. As a preliminary matter, Alvarado concedes in his appellate brief that his counsel introduced the subject of pornographic materials during cross-examination of T. H.
Furthermore, we have consistently held in child molestation
*812
cases that sexually explicit material has a tendency to demonstrate
“a
bent of mind toward similar sexual activity.” (Punctuation omitted.)
Burris v. State,
Specifically, Alvarado was charged with performing sexual acts involving the sex organ of the victim and the mouth of the defendant, acts involving the sex organ of the defendant and the mouth of the victim, exposing himself to the victim, and fondling the victim’s penis. According to T. H.’s testimony, the pornographic videos ^possessed by Alvarado depicted men performing oral sex on each other and engaging in anal sex. We have previously held that materials involving explicit homosexual activity were admissible when the defendant was charged with the inappropriate touching of a male child.
Walsh v. State,
Judgment affirmed.
Notes
Count 3 (aggravated child molestation) merged into the first two counts (aggravated sodomy).