Ronald Cleto Kapua appeals his convictions on two counts of child molestation and one count of cruelty to children, asserting that the evidence was insufficient to support the verdict. He also raises issues of prosecutorial misconduct and ineffective assistance of counsel.
1. Kapua contends that the trial court erred in denying his motion for new triаl on the grounds that the verdict was contrary to the evidence and principles of justice and equity and was strongly against the weight of the evidence. See OCGA §§ 5-5-20; 5-5-21. However, “[t]he denial of a nеw trial on these grounds addresses itself to the discretion of the trial judge. On appeal, this Court only reviews the evidence to determine if there is sufficient evidence to support the verdiсt, which is a matter of law, not discretion.” (Citation omitted.)
Jones v. State,
*194 Kapua contends that the evidence was insufficient to support his conviction because the victim, his stepdaughter, denied at trial that the acts of mоlestation occurred. For the reasons discussed below, however, this contention is without merit.
Pursuant to OCGA § 24-3-16, which allows admission of hearsay statements of a child relating to acts of sexual сontact or physical abuse, the State introduced evidence of out-of-court statements made by the child relating to acts of molestation by Kapua. Elizabeth White, the child’s schоol counselor, testified that the child told her Kapua had touched her on her breasts, buttocks, and “private parts.” She testified that the child told her Kapua had also exposed himsеlf to her and asked her to touch his private parts. The child said this had occurred oii several occasions. White testified that the child later repeated these statements in morе detail in a meeting with White and two other individuals, Kathy Kolberg of the Fannin County Department of Family fc Children Services (DFACS) and Diane Davis of the Fannin County Sheriff’s Department.
Dr. David Jones, a psychologist who counseled the child, testified that the child told him Kapua touched her on the breasts, anus, and vagina. She told him this had happened nine or ten times, and that many times Kapua had asked her tо touch his penis. Jones testified that he counseled the child on a regular basis, and that she confirmed these accounts on at least two subsequent occasions.
Kathy Kolberg, the DFACS caseworker, testified that she and Diane Davis interviewed the child on February 25, 1995, at the DFACS office. This interview was videotaped, and the tape was introduced into evidence and played before the jury. In the tape, the child repeated her accusations that Kapua touched her on the breasts, buttocks, and vagina.
At trial, however, the child, who was then ten years old, dеnied that Kapua had touched her anywhere except the chest and denied telling Davis and White that Kapua had touched her anywhere else. She testified that she never touchеd Kapua’s private parts and denied ever telling anyone that she had. She testified that she had not talked with Dr. Jones about Kapua touching her.
Although the child’s trial testimony contradicted her statements in the videotape and the testimony that she had told others of Kapha’s actions, this does not render the evidence insufficient to support the verdict. OCGA § 24-3-16 “requires only that the сhild be available to testify; it does not require the child to corroborate the hearsay testimony.”
Jones v. State,
There was evidence from which the jury could have concluded that the child was pressured by her family to change her testimony at trial. After DFACS raised allegatiоns of child abuse, the child’s mother and natural father went to see the child, who was staying with her great-grandmother. After the mother left, the police were called to the house. Officer Harrisоn testified that the great-grandmother told him the mother had brought a tape recorder and attempted to get the child to deny that anything had happened. According to the great-grandmоther, the mother would ask a question, then tell the child how to respond. If the child did not give the proper answer, the mother would spank her and the child would cry. Officer Harrison also testified that thе child confirmed these facts to him.
At trial, the great-grandmother denied that she had made such a statement to Harrison and denied that the mother had tape-recorded the child. Howevеr, “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes. . . . [T]he jury can determine whether to believe the present testimony, the prior testimony — or neither.”
Gibbons v. State,
Although the evidence in this case was conflicting, it is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court “determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the сredibility of the witnesses.” (Citation and punctuation omitted.)
West,
supra at 190 (1). Viewed in the light most favorable to the prosecution, the evidence was sufficient to enable the jury to conclude beyond a reasonable doubt that Kapua was guilty of the offenses
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charged. See generally
Frazier v. State,
2. In several enumerations, Kapua asserts error with respect to a sequence of questions asked by the prosеcutor to a witness. Elizabeth White testified that the child described Kapua’s actions in a meeting with White, Kolberg, and Davis. The prosecutor then asked, “were you able to evaluate based upon your training and experience what this child told you?” Kapua’s attorney objected to the question “as being the ultimate conclusion for this jury to decide” and because White had not been tendered as an expert. The judge stated that, “The question as asked, I sustain the objection at this time.” The prosecutor then asked, “What evaluation did you make of what she told yоu? I’ll ask it that way.” Kapua’s attorney did not object to this phrasing of the question, and the witness responded, “I felt like — if you mean whether or not she was being truthful, I didn’t have any doubt that the child was being truthful.” Kapuа’s attorney did not object to White’s response, request that her testimony be stricken, or request any other relief.
Kapua contends that the court erred in allowing White to testify as to the truthfulnеss of the child, arguing that such testimony amounted to improper bolstering of the child’s credibility. See
Roberson v. State,
Kapua also contends that the asking of the second question, after the sustaining of his objection to the еarlier question, constituted prosecutorial misconduct entitling him to a mistrial. However, our Supreme Court has held that “[t]he contemporaneous objection rule cannot be avоided by characterizing trial occurrences as examples of prosecutorial misconduct. . . . [Pjrosecutorial conduct not objected to at trial will not warrant reversal on appeal.”
Spencer v. State,
Kapua also contends that he received ineffective assistance of
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counsel because his trial attorney did not renew his objection to White’s testimony or move for a mistrial. “However, defendant’s trial counsel was not heard on this issue at the motion for new trial hearing, and for this reason, there is nothing for us to address on appeal.
Williams v. State,
Judgment affirmed.