Thе State indicted Kenneth Wayne Boddie for eight counts of sexual offenses against two of his four children.
On apрeal, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia,
At trial, S. B. testified that her father raped, sodomized, had oral sex with her, and “sexually abused” her with his hands, penis, or mouth on “my vagina, my breasts, and my butt” in an ongoing course of cоnduct occurring approximately “twice a week” when she was in sixth and seventh grades. Testimony showed that the last time she had sexual intercourse with her father was in January 2009, about two weeks before she made outcry to school сounselors on February 3,2009. The police officer who interviewed S. B. testified that she told him her father had been forcing her to have sexual encounters with him for about a year prior to the interview date of February 3, 2009. The indictment charged that the crimes occurred between August 9, 2007, and January 19, 2009.
Boddie testified in his own defense. He denied sexual conduct with S. B., but repeatedly stated that she asked him for sex and that he walked around the house naked after she did so. He aсknowledged that when interviewed by police, he first denied having sex with S. B., then admitted to molesting her. He testified that this was not a voluntary statement and that he confessed only because “I felt like if I hadn’t, that they would arrest my wife and my daughter.” He did not explain why he believed that the police might arrest his underage daughter.
On appeal, Boddie argues that he received ineffective assistance of counsel. In raising ineffective assistance, Boddie
was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the*668 outcome of the proceedings would have been diffеrent. . . . The likelihood of a different result must be substantial, not just conceivable.
(Citations and punctuation omitted.) Hill v. State,
In the instant case, the trial court in a detailed order found that Boddie had received effective assistance of counsel.
The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.
(Footnote omitted.) Sarratt v. State,
1. Boddie argues that his trial lawyer was ineffective in failing to file a special demurrer requiring the State to allege specific dates for the child molestation and three aggravated child molestation charges. Boddie argues that greater specificity would have allowed him to provide an alibi defense.
“To succeed on his ineffective assistance claim, [Boddie] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s defiсiency changed the outcome of the case.” (Citation and punctuation omitted.) Chalk v. State,
Here, the indictment provided a range of dates for the four charges, alleging that they occurred between August 9, 2007, and January 19, 2009, “the exact date of the offense[s] bеing unknown to the Grand Jury[.]” The indictment did not specifically allege that the dates were material. “For this reason, the date[s] alleged [were] not... material element[s] to be proven with specificity by the State.” (Citation omitted.) Chalk, supra at 47 (1) (a).
At the hearing on his motion for new trial, Boddie testified that he was away from S. B. at certain times between August and December, but in most instances did not testify as to specific dates or years, or whether he was out of town or just absent for a few hours. The mоst specific instance of his testimony showed that his wife was
Bоddie “did not proffer any evidence showing that he had a possible defense” for the series of offenses that recurred approximately twice weekly between August 9, 2007, and January 19, 2009. (Citation omitted.) Chalk, supra at 47 (1) (a). “Consequently, [Boddie] hаs failed to demonstrate that he was surprised or unable to present a defense due to the [range of dates] in the indictment; therefore, his claim of ineffective assistance of counsel on this ground affords no basis for reversal.” (Citation omitted.) Id. See Eberhardt v. State,
[I] t is well established that where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitation [ ]. An exception exists where the evidence of the [S]tate proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial.
(Citation omitted.) Lewis v. State,
“Of course, tactics and strategy provide no talismanic protection against an ineffective assistance of counsel claim. There are sometimes decisions that no rеasonable trial counsel would make under the circumstances.” (Citations and punctuation omitted.) Bufford v. State,
testimony demonstrаtes that [her] failure to seek greater specificity in the indictment was a strategic decision made after consideration of the ... likelihood of success. Counsel’s calculation was not based on a legal error, and suсh strategic decisions do not amount to deficient performance.
(Footnote omitted.) Allen v. State,
Boddie has shown neither deficient performance nor prejudice. The trial court did not err.
2. Boddie next argues that trial counsel was ineffective in “not adequately discussing the case with [him] with regard to the range of dates alleged in the indictment.”
At trial, Boddie was represented by two attorneys. He called only one to testify at the motion for new trial hearing. At that hearing, Boddie repeatedly tеstified that he did, in fact, talk with trial counsel about dates when he was away from S. B., but “not in any great detail[.]”
The trial attorney who testified at Boddie’s motion for new trial hearing stated that she discussed the date range in the indictment with him but did not recall any specific conversations. She also testified that she did not discuss narrowing the date range with him
As we discussed in Division 1, trial counsel testified that she did not believe alibi was thе appropriate defense because Boddie denied that anything untoward had happened with S. B. She testified that, given her determination after interviewing Boddie’s list of potential alibi witnesses that he did not have a viable alibi defеnse to an accusation involving a repeating pattern of conduct over a range of dates, she saw no basis for filing a demurrer.
Trial counsel testified that she was prepared to try the case and had the opportunity to discuss the case thoroughly with Boddie. Her testimony as cited above clearly indicates that she was aware of Boddie’s absences from the home and investigated his alibi witnesses. His testimony shows that he had some discussions of dates with this attorney, although perhaps not with the level of detail he now desires. However, at the motion for new trial hearing, Boddie did not ask this trial attorney whether any lack of discussion of the date range contributed to her failure to file а demurrer. Thus, the only evidence in the record indicates that she did discuss the date range with him and that her decision not to demur was a strategic one backed by legitimate reasoning. “[T]here exists no magic amount of time which counsel must sрend in actual conference with [her] client.” (Citation and punctuation omitted.) Ruffin v. State,
Judgment affirmed.
Notes
The same indictment also charged his wife, Kathleen Boddie, with one count of cruelty to children in the second degree (OCGA § 16-5-70 (c)), to which she entered a guilty plea. She testified for the State at her husband’s trial in this case hut is not otherwise apart of this appeal.