572 S.E.2d 80 | Ga. Ct. App. | 2002
A Dawson County jury found Homer Lee Kidd guilty of child molestation for acts he committed against his six-year-old granddaughter. He appeals, claiming that the evidence was insufficient to support the verdict; that the trial court erred by refusing to admit into evidence a certified copy of conviction of a third party in order to show another person may have committed the indicted act; and that Kidd received ineffective assistance of counsel. These claims of error are meritless, and we affirm.
1. The evidence, viewed in a light to uphold the verdict, was sufficient to support the jury’s verdict under the standard of Jackson v. Virginia.
Under this same enumeration of error, Kidd challenges the evidence demonstrating the necessary criminal intent, i.e., the intent to arouse or satisfy the sexual desires of either the child or the defendant. “But it is well-recognized that whether the requisite intent for child molestation existed was a question of fact, to be determined by the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive.”
(a) No foundation was laid for the admission of the conviction. The neighbor was not called to the stand, and the defense attempted to introduce the third-party conviction without asking any witness to identify the document, the factual representations contained therein, or to otherwise establish that such document fell within an exception to the hearsay rule.
(b) Contrary to Kidd’s assertions, a third-party conviction for child molestation is not “direct evidence of an alternative explanation for the victim’s claims of child molestation”; such evidence does not lessen Kidd’s culpability with regard to his granddaughter’s assertions against him.
Kidd’s reliance on our decision in Hall v. State,
Second, in Hall, we found that such evidence of actual abuse by a third party was admissible in order to provide an alternative explanation for behaviors that led an expert witness to conclude that the victim suffered from child abuse accommodation syndrome; such evidence was admissible to impeach the notion that the child abuse accommodation syndrome was caused by defendant Hall. In no way does our holding in Hall lend support for the proposition espoused by
3. In this case, Kidd was granted an out-of-time appeal, and appellate counsel was appointed. Now, on appeal, Kidd claims for the first time that he received ineffective assistance of counsel at trial. However, it is well established that
the grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.11
As Kidd failed to pursue his claim of ineffective assistance of trial counsel in a motion for new trial and to secure an evidentiary hearing thereon, such claim is waived for purposes of appellate review.
Judgment affirmed.
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
OCGA § 24-4-8.
Rucker v. State, 272 Ga. 750, 752 (2) (534 SE2d 71) (2000).
(Citation and punctuation omitted.) Jowers v. State, 245 Ga. App. 773 (1) (538 SE2d 853) (2000).
Supra.
196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990).
See, e.g., Brown v. State, 268 Ga. 76, 77-80 (485 SE2d 486) (1997); Miller v. State, 266 Ga. 850, 851-852 (1) (472 SE2d 74) (1996).
See, e.g., Jones v. State, 273 Ga. 231, 236 (9) (539 SE2d 154) (2000).
(Citation omitted.) Williams v. State, 236 Ga. App. 667 (1) (512 SE2d 363) (1999).
Supra.
(Citations omitted.) Ponder v. State, 260 Ga. 840, 841-842 (400 SE2d 922) (1991).
Ball v. State, 233 Ga. App. 859 (1) (506 SE2d 149) (1998).