A Gwinnеtt County jury convicted Torrey Nitaya Borders of three counts of aggravated child molestation, one count of aggravated sexual battery, five counts of child molestation, and one count of criminal solicitation to commit murder. The trial court denied Borders’ motion for new trial, from which he appeals. He contends that the trial court erred in denying his motion to sever the criminal solicitation to commit murder count from the remaining charges. He also contends that the trial court erred in admitting evidence that he had committed a prior battery against the victim’s mother, and that his trial counsel was ineffective for failing to objeсt to this same evidence when it was presented again during the course of trial. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdict,
Jackson v. Virginia,
At trial and in a videotaped interview, the victim described the numerous acts of molestation perpetrated upon her by Borders, including simulated sexual intercourse in which Borders moved the *338 unclothed victim’s body on top of his unclothed body until he ejaculated; oral sodomy in which Borders placed the victim’s mouth on his penis; oral sodomy in which Borders placed his mouth on the victim’s vagina; the touching of thе victim’s buttocks and breast by Borders; and the victim’s touching of Borders’ penis.
On several occasions, Borders attempted actual intercourse with the victim but stopped after the victim cried that Borders was hurting her. He also attempted to anally sodomize the victim several times. On one occasion, Borders inserted a sexual device into the victim’s vagina. He also showed her a television program depicting nude womеn engaged in sexual acts.
The victim initially did not tell her mother about the molestations because she feared that Borders would hurt her and her mother. She had seen Borders hit her mother and knew that he previously had been arrested for battery against her mother. Eventually, the victim made an outcry to a friend, and with her friend’s encouragement, she disclosed the abuse to her mother. The disclosure ultimately led to Borders’ arrest and detеntion at the Gwinnett County detention center.
While in jail, Borders confided in his cellmate and confessed to the acts of molestation and sexual abuse against the victim. Borders also discussed plans to kill the victim. Bordеrs told the cellmate, “the only thing that [I] can do [is] to get [the victim] killed, and if she don’t testify, can’t nobody prove what [I] did.”
The cellmate informed the police of Borders’ plan. During an arranged meeting with an undercover оfficer posing as a hit man, Borders requested that the victim be murdered, discussed payment for the job, gave the officer directions to the victim’s school bus stop, and told him the time that the victim would be getting off of the bus.
Basеd upon this evidence, Borders was charged with and convicted of aggravated child molestation, aggravated sexual battery, child molestation, and criminal solicitation to commit murder.
1. Borders first contends that thе trial court erred by denying his pretrial motion to sever the solicitation to commit murder charge for purposes of trial. He argues that the solicitation charge had no relationship to the remaining sexual оffense charges. We disagree.
[A] defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the greаt risk of prejudice from a joint disposition of unrelated charges. However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are *339 likely to be unique. In determining whether severance is necessary to achieve a fair determination of the defendant’s guilt or innоcence of each offense, the court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
(Citations and punctuation omitted; emphasis supplied.)
Coats v. State,
Here, the joinder of offenses was based upon evidence showing a connected series of acts that started with Borders’ commission of the multiple sexual offenses against the victim, and culminated in Borders’ solicitation to have the victim murdered to prevent her from testifying against him at trial. Thus, severance of the offenses was not required. See
Wilcox v. State,
Moreover, it is clear that evidence of the solicitation to murder would have been admissible in a separаte trial of the sexual offenses since the solicitation constituted an admission by conduct. “Evidence of an act by an accused, intended to obstruct justice or avoid punishment for the crime for which he or shе is on trial, is admissible if the act constitutes an admission by conduct.” (Citation and punctuation omitted.)
Conner v. State,
Undеr these circumstances, severance was not required to achieve a fair determination of the defendant’s guilt or innocence of each offense. The trial court did not abuse its discretion in denying Bordеrs’ motion to sever.
Sweeney v. State,
2. Borders further argues that the trial court erred in admitting evidence that he had hit the victim’s mother. 2 At trial, the investigating detectivе was allowed to testify over objection that during the course of the interview, the victim stated that she did not immediately disclose the molestations because she was afraid of Borders since she had witnessed him hitting and оtherwise being violent with her mother. Borders contends that the challenged evidence erroneously placed his character in issue. Again, we find no error.
“Whether to admit evidence is a matter that rests in the sound discretion of the trial court. Evidence that is relevant and material to an issue in the case is not made inadmissible because it incidentally places the defendant’s character in issue.”
Price v. State,
3. Finally, Borders contends that his trial counsel was ineffective for failing to object to evidence of his prior arrest for assault and battery against thе victim’s mother.
To prevail on a claim of ineffective assistance of counsel, an appellant must show deficient performance on the part of counsel and prejudice to his defense rеsulting from that deficient performance. Strickland v. Washington,466 U. S. 668 , 687 (III) (104 SC 2052, 80 LE2d 674) (1984). A successful ineffective assistance claim must satisfy both prongs of the Strickland test.
Adams v. State,
“[M]ere mention that a defendant has been in jail falls short of placing his character at issue.”
Taylor v. State,
Judgment affirmed.
Notes
Citing to federal authority, Borders contends that to resolve the joinder issue, the trial court was required to look solely to the allegations of the indictment, which failed to specify that the victim of the sexual offenses was the same intended victim of the solicitation to commit murder charge. See
United States v. Chavis,
Borders also claims that the trial court erred in admitting evidence that he had been аrrested for battery against the victim’s mother. However, the record shows that at the time of Borders’ objection, the detective had not testified as to Borders’ arrest for battery. When Borders’ battery arrest was mentioned later as the victim’s videotaped interview was played, Borders’ counsel did not object. The trial court was not required to exclude this evidence sua sponte, and the failure of Borders’ counsel to object to this evidence is treated as a waiver. See
Spear v. State,
Borders also testified at trial and admitted that his prior altercations with the victim’s mother “actually [became] more fights [rather] than arguments.”