Fоllowing a jury trial, Earl Forde, Sr., was convicted on one count of sexual battery against a child under the age of 16 years.* 1 He appeals his conviction, his sentence, and the denial of his motion for new trial, arguing (i) that his trial counsel provided ineffective assistance by failing to object to inadmissible hearsay evidence and (ii) that the trial court erred in sentencing him for the commission of a felony pursuant to the amended sexual battery statute despite the fact that it is unclear from the jury’s verdict whether he was found guilty of pre-amendment or post-amendment conduct. For the reasons set forth below, we affirm Forde’s conviction but vacate his felony sentence and remand for resentencing.
*806 Viewed in the light most favorable to the verdict, Davis v. State, 2 the record shows that in 2002, Forde’s 13-year-old daughter, B. F, was disciplined by her eighth grade teacher for talking back in class. Later that day, after the school informed him of her behavior, Forde orderеd B. F. to her bedroom and told her that he was going to punish her with a spanking. As Forde demanded, B. F. removed her pants and lay down on her stomach, but instead of spanking her, Forde began touching her privates and only stopped when B. F. began crying.
A couple of years passed with no further abuse occurring. However, on two occasions in either late 2003 or early 2004, when B. F. was fifteen years old and in the tenth grade, Forde ordered B. F. to a bedroom, demanded that she remove her pants, and touched her privates under the pretense of “inspecting” her to determine if she was having sex. In the early summer of 2004, Forde once again demanded that B. F. allow him to touch her privates for what he termed an “inspection,” but this time B. F. refused and immediately thereafter called her grandmother in New York to report that her father had been sexually abusing her. That same day, B. F.’s grandmother informed B. F.’s mother (Forde’s wife) of thе abuse that had been occurring over the past few years. After B. F.’s mother confirmed what B. F.’s grandmother told her by talking to her daughter, she notified the police.
Forde was indicted on two counts of child molestation. The first count alleged that sometime between 2000 and 2004, Forde had touched B. F.’s privates, and the second count alleged that sometime between 2000 and 2004, he had touched B. F.’s breasts. B. F., Forde, and several other witnesses for both the State and the defense testified at trial. After the State rested, the trial court granted Forde’s motion for a directed verdict as to the second count of сhild molestation, which alleged that Forde had touched B. F.’s breasts. The trial court also charged the jury on the lesser included offense of sexual battery on a child under the age of 16 years pursuant to OCGA § 16-6-22.1. However, the jury was unable to reach a verdict, and the trial court declared a mistrial.
At the second trial, B. F. again testified regarding the sexual abuse, and her mother and grandmother again testified regarding B. F.’s outcry. The State also proffered similar transaction evidence through the testimony of one of B. F.’s friends, who testified that Forde made inappropriate sexual remarks and tried to force her to sit on his lap while giving her a ride home one night. In addition, the State introduced, without objection, a videotaped forensic interview *807 of B. F. by a psychologist with a local child advocacy center, during which B. F. recounted Forde’s acts of sexual abuse. Forde testified in his own defense and dеnied the allegations. He and several other defense witnesses also offered evidence that B. F. resented being disciplined, that she did not like living in Georgia, and that she concocted the abuse allegations so that she would be allowed to move back to New York with her grandmother. At the close of evidence, the trial court again charged the jury on the lesser included offense of sexual battery on a child under the age of 16 years. The jury found Forde guilty of the lesser included offense, and the trial court sentenced him to serve five years in prison pursuant to OCGA§ 16-6-22.1 (d).
Subsequently, Forde obtained new counsel and filed a motion for new trial, alleging that he received ineffective assistance of counsel at trial and that the trial court erred in sentencing him for committing felony sexual battery. After a hearing, the trial court issued an order denying Forde’s motion. This appeal followed.
1. Forde contends that his trial counsel provided ineffective assistance by failing to make a hearsay objection to B. F.’s statements in the videotaped forensic interview conducted by the child advocacy psychologist. We find no prejudice.
To establish ineffective assistance of counsel under
Strickland v.
Washington,
3
a criminal defendant must prove (1) that his trial counsel’s рerformance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.
Mency v. State.
4
“Making that showing requires that [Forde] rebut the strong presumption that [his] lawyer’s conduct falls within the wide rаnge of reasonable professional assistance.”
Simpson v. State.
5
See
Wright v. State;
6
Mency,
supra,
At the hearing on his motion for new trial, Forde’s trial counsel testified that he did not raise a hearsay objection to the videotaped intеrview of B. F. by the child advocacy psychologist because he did not think that the statements in the videotape constituted hearsay but that he would have objected if he thought he could have kept the *808 statements out of evidence. Forde argues that the videotaped interview was not subjeсt to the Child Hearsay Statute because B. F. was 16 years old when she made the statement, and thus the interview constituted inadmissible hearsay. SeeOCGA§ 24-3-16; Currington v. State. 8
The State responds that the videotaped interview was admissible as a prior consistent statement. Specifically, the State argues that Forde’s defense focused on attacking B. F.’s credibility by offering evidence that she fabricated the sexual abuse allegations because she hated Forde and wanted to move back to New York, and therefore her statements in the interview were admissible to demonstrate that her recounting of the abuse hаd always been consistent. This argument, however, misconstrues the law regarding prior consistent statements. Following our Supreme Court’s holding in Woodard v. State, 9 we have held that
only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination is a witness’s veracity placed in issue so as to permit the introduction of a prior consistent statement. Even then, the prior consistent statement may be admitted as nonhearsay only if it was made before the motive or influence came into existence or before the time of the alleged recent fabricаtion. Otherwise, it is pure hearsay, which cannot be admitted merely to bolster the witness’s credibility.
Phillips v. State.
10
See
Joines v. State.*
11
Here, the videotaped interview was conducted in August 2004, over one month after B. F.’s initial outcry to her grandmother. Given Forde’s contention that B. F.’s initial allegations of sexual abuse were prompted by her long-stаnding animosity toward him and her desire to move back to New York, her statements contained in the videotaped interview were made well
after
the alleged improper motive came into existence. Thus, B. F.’s statements made during the interview constituted hearsay and should have elicited an objectiоn from Forde’s trial counsel. See
Thompson v.
State;
12
Phillips,
supra,
However, although Forde’s trial counsel performed deficiently in failing to raise a hearsay objection to the admission of B. F.’s stаtements contained in the videotaped interview, Forde has not shown that counsel’s error prejudiced his defense. The statements made by B. F. during the videotaped interview were merely cumulative of the testimony she offered at trial, regarding which she was cross-examined by Forde’s trial counsel, and wеre therefore harmless. See
Currington,
supra,
2. Forde contends that the trial court erred in imposing a felony sentence pursuant to the sexual battery stаtute as amended in 2003 despite the fact that it is unclear from the jury’s general verdict whether Forde was found guilty of acts of sexual battery that he committed before the statute was amended or of acts that he committed after the amendment.
Prior to June 2, 2003, OCGA § 16-6-22.1 punished all sexual battery as a misdemeanor. See former OCGA § 16-6-22.1; Ga.L. 1990, p. 1003, § 2. The amended version of OCGA § 16-6-22.1 added subsection (d), which provides: “A person convicted of the offense of sexual battery against any child under the age of 16 years shall be giiilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.” Ga. L. 2003, pp. 573-574, § 1.1. Here, the sole count remaining in the indictment at the start of the second trial alleged that Forde’s molestation of B. F. occurred on specific dates unknown between September 1, 2000 and March 4, 2004. At trial, B. F. testified that one of Forde’s acts of sexual abuse occurred in 2002, when she was in the *810 eighth grade, and that his two other acts of sexual abuse occurred sometime in late 2003 or early 2004, when she was in the tenth grade. Notwithstanding the fact that the acts of sexual abuse fell both before and after the effective date of amended OCGA § 16-6-22.1, the trial court did not provide the jury with a special verdict form. Consequently, the jury’s verdict did not make any specific findings as to when the sexual abuse occurred. Despite this lack of specificity, the trial court sentenced Forde to five years imprisonment pursuant to amended OCGA§ 16-6-22.1 (d).
Forde challenged the legality of the sentеnce in his motion for new trial, but that challenge was denied. On appeal, he now argues that absent a special verdict, it is impossible to know whether the jury may have convicted him of sexual battery based solely on his conduct prior to the June 2, 2003 amendment to OCGA § 16-6-22.1, in which case the felony sentenсe violates the Ex Post Facto Clause and thus is void as a matter of law. We agree. “A sentence is void if the court imposes punishment that the law does not allow.” (Punctuation omitted.) Jones v. State. 18 Thus, “a trial court may resentence a defendant at any time when the sentence is contrary to law.” Barraco v. State. 19 “Article I of the United States Constitution provides that neither Congress nor any State shall pass any ‘ex post facto law.’ ” Miller v. Florida. 20 See Art. I, Sec. 9, cl. 3; Art. I, Sec. 10, cl. 1. “To fall within the ex post facto prohibition, a law must be retrospective — that is, it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime.” (Citation and punctuation omitted.) Lynce v. Mathis. 21 See Collins v. Youngblood 22 Postell v. Humphrey. 23
Although we have found no Georgia case authority that directly addresses the issue of whether a general guilty verdict on a charge for conduct that could have occurred either before or after enhanced punishment for that conduct was enacted violates the Ex Post Facto Clause, we find the federal case authority regarding this issue to be persuasive. Most recently, in United States v. Tykarsky 24 the Third Circuit Court of Appeals held that sentencing a defendant to the *811 mandatory minimum prescribed by a statute where there was at least a possibility that the jury convicted the defendant based solely on pre-statute conduct violated the Ex Post Facto Clause. Specifically, the court held that “because the [conduct] spanned two different versions of the statute with different minimum penalties, the question of whether the violation extended beyond the effective date of the amended version was one that had to be resolved by the jury.” Id. at 479-480 (IX) (A). As a result, the court concluded “that sentencing [the defendant] to the mandatory minimum prescribed by the [statute] constitutes plain error, and we will vacate his sentence.” Id. at 483 (IX) (C).
Similarly, in United States v. Torres, 25 the Second Circuit found an ex post facto violation where defendants were subjected to life sentences for conduct that “straddled” the date that the mandatory life sentence for the crime went into effect. The court held that the mere possibility, hоwever remote, that the jury convicted based on acts that occurred prior to the enactment of the mandatory life sentence was plain error and required a remand for resentencing. Id. Moreover, our own Supreme Court, albeit in a different context, has also recognized the potential problem posed by general jury verdicts in cases involving multiple acts by a defendant. See Crawford v. State 26 In Crawford, the court acknowledged “the well-settled rule that if a case has been submitted to the jury on several alternative theories, one of which is unconstitutional, a general verdict of guilty which dоes not indicate that it was based upon one of the constitutional theories must be set aside.” Id. See Stromberg v. California 27
Here, given B. F.’s testimony regarding the time frame during which the separate acts of sexual abuse took place, there is a possibility that a reasonable jury could have convicted Forde of sexual battery based solely on the act of sexual abuse that occurred prior to the June 2, 2003 amendment to OCGA§ 16-6-22.1. In light of this possibility and of the State’s burden of proving all elements of a crime beyond a reasonable doubt, the trial court should have required a special verdict form that addressed both Forde’s pre-amendment and post-amendment conduct to avoid a potential ex post facto violation. See
Tykarsky,
supra,
Judgment affirmed; sentence vacated, and case remanded for resentencing.
Notes
OCGA§ 16-6-22.1 (b), (d).
Davis v. State,
Strickland v. Washington,
Mency v. State,
Simpson v. State,
Wright v. State,
Rose v. State,
Currington v. State,
Woodard v. State,
Phillips v. State,
Joines v. State,
Thompson v. State,
Kirkland v. State,
Wilson v. State,
Jeffries v. State,
Williams v. State,
Hanson v. State,
Jones v. State,
Barraco v. State,
Miller v. Florida,
Lynce v. Mathis,
Collins v. Youngblood,
Postell v. Humphrey,
United States v. Tykarsky,
United, States v. Torres, 901 F2d 205, 229 (B) (2nd Cir. 1990).
Crawford v. State,
Stromberg v. California,
Taylor v. State,