Abe Lee Buice was charged with molesting his ten-year-old daughter on two occasions by placing his finger in her vagina. A Spalding County jury found Buice guilty of two counts of child molestation, and Buice appeals, asserting numerous errors. We affirm.
1. In his first enumeration of error, Buice contends that the trial court erred in allowing the State to try him on an indictment that had been nolle prossed. Buice was indicted twice, once in 1994 and *53 once in 1996. The 1994 indictment accused Buice of placing his finger in the vagina of his daughter, once on July 14, 1994, and once during the month of September 1994. The 1996 indictment accused Buice of fondling the vagina of his daughter twice during the month of September 1994.
The case was scheduled for trial on February 24,1997. On February 20, 1997, the trial court entered an order consenting to the State’s entry of nolle prosequi on the 1994 indictment because the charges had been re-indicted in 1996. Shortly before trial, the State informed the trial court that the State had made a mistake in requesting the entry of nolle prosequi on the 1994 indictment. The State then moved for an order from the trial court rescinding the order of nolle prosequi, and, on February 24, 1997, the trial court issued an order vacating its earlier order.
Buice argues that the State should not have been permitted to try him on the 1994 indictment. According to Buice, once an order of nolle prosequi has been entered, “the indictment is dead and no subsequent Order can bring the dead indictment back to life.” Thus, Buice argues that the State’s only recourse was to re-indict him prior to proceeding with the trial. 1
An order of nolle prosequi “is the State’s formal action on its decision not to further prosecute that indictment.”
Redding v. State,
The issue before us is whether, in addition to re-indicting the defendant, the State can revive a prosecution by petitioning the trial court to vacate its order consenting to the entry of nolle prosequi. In other words, does the trial court have authority to rescind its approval of the entry of nolle prosequi? Although we are aware of no Georgia case on point, several other jurisdictions have dealt with this issue and provide some guidance.
The Illinois Supreme Court addressed this issue in
People v. Watson,
*54 [cjourts of general jurisdiction have inherent authority, during the term, to vacate any judgment or order that may have been made at that term. This was the rule at common law and prevails in most jurisdictions. Considering then that a court has the inherent power to set aside judgments and orders made during the term, can any sound argument be advanced why a court has not the power to set aside a dismissal of an indictment or information and reinstate the case during the term at which the dismissal was entered? The general rule is that a nolle prosequi or a dismissal of a criminal charge, if made prior to the time a jury is impaneled and sworn, is not a bar to a subsequent prosecution for the same offense. There is no difference, so far as the defendant’s rights are concerned, whether, after the dismissal of a charge, a new information or indictment is filed or the order of dismissal set aside and defendant tried on the old information or indictment. An order of dismissal or a nolle prose-qui in a criminal case may be set aside during the term at which the order is made.
(Punctuation omitted.) Id. at 181.
Similar reasoning has been employed in other jurisdictions including the Ninth Circuit, Missouri, Arizona and Pennsylvania.
United States v. Emens, 565
F2d 1142, 1144-1145 (9th Cir. 1977) (dismissal of indictment);
State v. Montgomery,
As in Illinois, courts of record in Georgia “retain full control over orders and judgments during the term at which they were rendered, and, in the exercise of a sound discretion, may revise or vacate them.” See
Drain Tile Machine v. McCannon,
2. Buice asserts that the trial court erred in allowing a witness to testify regarding the victim’s credibility. Prior to admitting the testi *55 mony of Suzanne Howell from the Department of Family & Children Services regarding the victim’s statement under the Child/Victim Hearsay Statute, OCGA § 24-3-16, the trial court asked Howell, in the presence of the jury, whether the victim had exhibited “a general attitude of credibility” during the interview process. Howell responded that she “had a very strong conviction in her heart” that the victim was telling the truth. According to Buice, the trial court erred in questioning a witness about the victim’s credibility in front of the jury. We agree.
It is well settled that “[i]n no circumstances may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.”
Price v. State,
In this case, the victim was not consistent regarding her allegations of abuse. When Howell first interviewed her, the victim claimed that, on July 14,1994, Buice put his hands in her panties and put his finger in her vagina. During a subsequent interview with Howell, however, the victim recanted, telling Howell that the incident “didn’t happen.” At trial, the victim once again claimed that her father had molested her by rubbing her “private parts.” With respect to her prior inconsistent statement to Howell, the victim testified that she recanted during the second interview with Howell as a result of family pressure.
Prior to addressing the victim’s credibility, Howell testified that she had worked as an investigator on children’s cases from 1987 to 1995 and that she had received specialized training with respect to handling molestation cases and interviewing victims. In view of Howell’s expertise, her testimony that she believed the victim was truthful would have been particularly compelling to the jurors. It is for this reason that our courts have consistently held that expert witnesses may
not
testify regarding truthfulness or credibility.
Smith v. State,
The State contends that Howell’s testimony was not objectionable because it was not the result of an attempt by the State to bolster the victim’s credibility. Rather, the statement was made in response to the trial court’s inquiry under OCGA § 24-3-16. However, *56 as Howell’s statement was made in front of the jury, it was objectionable notwithstanding the fact that the trial court rather than the State elicited the testimony.
Pursuant to OCGA § 24-3-16, a trial court may admit
a statement made by a child under the age of 14 years describing any act of sexual contact. . . performed with or on the child by another ... 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.
The Code section does not specify the procedure the trial court should use in determining whether to admit such statements. In
Reynolds v. State,
Despite the impropriety of Howell’s testimony, Buice did not object to its admission at trial. As a general rule, “it is too late to urge objections to the admission of evidence after it has been admitted without objection. It is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Punctuation omitted.)
Davitt v. State,
Although we do not condone the trial court’s conduct, we cannot say that it constitutes plain error. The victim’s testimony was not the
only
evidence linking Buice to the crimes. Compare
Price,
supra (no evidence of molestation except testimony of victims). Here, Buice confessed to the crime. Given this confession, we find it improbable that Howell’s testimony was the deciding factor for jurors. See
Cline,
supra. As this is not a case of plain error, Buice waived the error by failing to object.
Kapua v. State,
*57
3. Buice contends the trial court erred in admitting evidence of similar transactions without first conducting a hearing in accordance with Uniform Superior Court Rule (USCR) 31.3. Although Buice failed to object to the admission of any of the allegedly objectionable testimony, this Court has held that failure to object under these circumstances does not constitute waiver.
2
Riddle v. State,
Buice cites numerous instances where he claims the prosecution elicited “devastating and prejudicial other crime evidence.” The first occurred after the victim testified that her sister, Michelle, had asked her whether her father had “touched [her] anyplace that was wrong.” When the prosecutor asked the victim why Michelle asked the question, the victim responded that she did not know, but that she “had heard that when [Michelle] was little he did the same thing to her.” The prosecutor did not ask any other questions pertaining to the alleged molestation of the victim’s sister. Pretermitting whether the victim’s statement constitutes evidence of a similar transaction, we fail to see how Buice was harmed. The victim did not testify that Buice had molested Michelle, merely that she had heard about an earlier incident. Accordingly, the admission of this testimony was harmless. Hall, supra.
Next, Buice complains that the trial court erred in allowing the victim to testify about other instances of molestation by Buice that were not listed in the indictment. However, there is no requirement that the State comply with USCR 31.3 when presenting evidence of prior difficulties between the victim and the accused.
Wall v. State,
Buice claims as error the admission of evidence that he molested his daughter, Michelle, and his wife, Jamie, when the two were children.
3
During his case, Buice called Michelle and Jamie as witnesses. Both Jamie and Michelle testified on direct examination about Michelle’s allegation that Buice had molested her as a child and claimed that the allegations were false. Thus, the trial court did not err in allowing the State to impeach the two with evidence of their
*58
prior statements about the molestation. See
Chezem v. State,
On cross-examination, the State questioned Jamie about allegations she had made that Buice had molested her as a child. Jamie denied the allegations, and the State attempted to impeach her with evidence of a prior inconsistent statement. Even if the admission of this evidence was error, we are persuaded it was harmless, especially in view of the fact that Jamie, the alleged victim, maintained that Buice never molested her. Hall, supra.
Finally, we note that after Jamie and Michelle testified, Buice testified on direct examination that he never abused either the victim, or Michelle, or any child. Thus, Buice opened the door for the State’s rebuttal testimony regarding Michelle’s and Jamie’s prior allegations of molestation. See
Davidson v. State,
4. Buice argues that a fatal variance existed between the indictment and the evidence presented at trial. Specifically, Buice notes that although the indictment charged him with putting his finger in the vagina of the victim, the victim testified that he never placed his finger in her vagina. Rather, she testified that Buice rubbed his hand on her vagina.
This discrepancy in the evidence does not constitute a fatal variance. Our courts no longer employ
an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.
(Citation and punctuation omitted.)
Turner v. State,
In
Winter v. State,
5. Buice next contends the trial court erred in charging the jury on child molestation. In defining this offense, the trial court recited in its entirety OCGA § 16-6-4 (a), which reads: “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”
As a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable.
Perguson v. State,
Moreover, prior to defining child molestation, the trial court read the indictment to the jurors, informing them of the exact offenses for which Buice had been charged. After reciting OCGA § 16-6-4 (a), the trial court instructed the jury that Buice’s guilt must be based upon the offenses as set forth in the indictment. Thus, the trial court properly limited the elements of the crime to those charged in the indictment.
Moses v. State,
6. In four enumerations of error, Buice argues that the trial court erred in refusing to grant his motion for new trial because he received ineffective assistance of trial counsel. Buice bears the burden of establishing that he received ineffective assistance of trial counsel.
Tucker v. State,
must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. We will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result.
(Citation and punctuation omitted.) Id.
(a) Buice claims that his trial counsel was ineffective because she failed to object when DFACS witness Howell testified regarding the victim’s credibility. At the hearing on Buice’s motion for new trial, his trial counsel testified that she chose not to object because she did not feel that Howell’s testimony hurt Buice’s case. Pretermitting whether counsel’s decision not to object to Howell’s testimony constituted ineffective assistance, it does not require reversal as Buice fails to establish prejudice. For the reasons discussed in Division 2, we are persuaded that Howell’s statements regarding the victim’s credibility were not so significant as to have contributed to the jury’s verdict. See
Moss v. State,
(b) Buice also argues that his trial counsel was ineffective in failing to object to the admission of similar transaction evidence because the trial court did not conduct a hearing on the admissibility of the evidence in accordance with USCR 31.1 and 31.3.
At the hearing on Buice’s motion for new trial, his trial attorney stated that Buice insisted on taking the stand and testifying in such a way that the allegations of molestation against Michelle and Jamie would surface. In addition, Buice insisted that both Michelle and Jamie, who had recanted their earlier accusations of molestation, testify on his behalf. Buice’s trial counsel advised Buice that, by testifying and by calling Jamie and Michelle as witnesses, he would open the door to allegations that he had abused these two women. Nevertheless, Buice and his attorney decided to confront the allegations of molestation directly. Accordingly, the decision to introduce the prior allegations of molestation constituted a tactical decision. The fact that Buice now disagrees with this tactic does not render his counsel’s performance deficient.
Mize v. State,
Buice took the stand at the hearing on the motion for new trial and gave a conflicting version of events. Buice testified that he had not wanted evidence regarding the prior allegations of molestation
*61
admitted during trial. Determining the credibility of the witnesses at the hearing on Buice’s motion for new trial was a matter within the trial court’s discretion.
Randolph v. State,
(c) In a related claim, Buice asserts that his trial counsel should have requested a limiting instruction on the evidence of other crimes. Buice’s trial counsel explained that she opted not to request such an instruction because she “did not want to characterize [the prior allegations of molestation] as similar transactions or crimes or as anything that had been proven to have occurred.” Since counsel’s decision may be considered trial strategy, reversal is not required.
Johnson v. State,
(d) Buice argues that his trial counsel rendered ineffective assistance based on her failure to request a jury instruction that prior inconsistent statements can be considered as substantive evidence. During the State’s case in chief, the victim testified that, prior to trial, she had been pressured by family members into withdrawing her allegations of molestation. Both the victim and Howell testified that, during one meeting between the two, the victim denied having been molested. On cross-examination, Buice’s attorney questioned the victim pointedly about her prior inconsistent statements. However, Buice’s trial attorney admittedly did not request a jury instruction on prior inconsistent statements.
We find no error in trial counsel’s decision. As the Supreme Court held, “[t]he failure to give a charge on prior inconsistent statements as substantive evidence is not error as absent instructions to the contrary, the jury surely regarded substantively
all
the evidence presented to it.” (Punctuation omitted.)
Caldwell v. State,
Judgment affirmed.
Notes
We note that Buice does not claim that he was prejudiced or surprised by the trial court’s February 24 order.
Since it is unnecessary to our analysis, we do not address whether
Riddle
was implicitly overruled by the Supreme Court’s decisions in
State v. Belt,
Buice is five years older than his wife. When Buice’s wife was a child, her mother lived with Buice’s father and Buice and Jamie lived together as stepbrother and stepsister.