Fоllowing a jury trial, Jerry Wayne Long was convicted of two counts of aggravated child molestation and four counts of child molestation of victim A. J. E. and two counts of child molestation and two counts of sеxual battery of victim C. L. B. Long claims that the trial court erred in admitting a photograph of C. L. B. He also maintains that he received ineffective assistance of counsel. We affirm for the reasons sеt forth below.
1. C. L. B. testified on direct examination that Long asked her to pose for him, and that he took photographs and video recordings of her with her clothes off. C. L. B., who was Long’s stepdaughter, alsо testified that Long would ask for her to pose in the master bedroom of their residence. The prosecutor showed C. L. B. a photograph identified as State’s Exhibit 1. The photograph depicts a nudе child sitting on a bed with a bow covering her genital area and a clothed woman lying on the bed. C. L. B. identified herself as the child in the picture and the woman in the picture as her mother, and the location as the master bedroom. The prosecutor asked, “Is that the type of photo he would have you pose for?” C. L. B. responded affirmatively.
After C. L. B. was excused, the State tendered the photograph into evidence and Long’s trial counsel objected on the grounds that, because C. L. B. did not identify Long as the photographer, the photograph was irrelevant and prejudicial. Trial cоunsel also pointed out that the child in the photograph appeared to be three or four years old while he had established on cross-examination of C. L. B. that the alleged misconduct bеgan
Long first questions whether the phоtograph was properly authenticated. He refers us to Phagan v. State,
We find Phagan does not control on this point because Long’s trial counsel objected to the admission of the photograph on the grounds that it was irrelevant and not because it was not properly authenticated. “In order to raise on appeal an impropriety regarding the admissibility of evidence, thе specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” (Citation omitted.) Winter v. State,
Long’s challenge to the admission of the photograph on relevancy grounds has more merit. The State showed no physical connеction between Long and the photograph, either that he took the photograph or that it was found in his possession. Rather, C. L. B. testified that the photograph was the “type” of photograрh that Long took of her. Although the photograph does depict a nude C. L. B., the child is very young and with her mother, and the evidence showed that the alleged acts of molestation occurred when C. L. B. wаs older and the events did not occur in the presence of her mother. No photographs or videotapes of C. L. B. which were allegedly made by Long were introduced into evidence.
Relеvancy is determined by answering the following question: Does the evidence offered render the desired inference more probable than it would be without the evidence? Where an issue is raised as to whether the probative value of evidence is outweighed by its tendency to unduly arouse the jury’s emotions of prejudice, hostility, or sympathy, the trial judge has a discretion to be exercised in determining аdmissibility.
(Footnotes omitted.) Upkins v. State,
Given the lack of any established connection between Long and the photograph, the photograph’s probative value was marginal. Compare Summage v. State,
A reversal is not required, however, because we conclude that the admission of the photograph was harmless error. “The test for harmless error in а criminal case is whether it is highly probable that the error did not contribute to the judgment.” (Citation omitted.) Hanson v. State,
In Frazier the trial court improperly instructed the jury that they could consider unrelated pornographic videotapes and sexual toys as proof of the defendant’s lustful disposition. Frazier, supra,
State’s Exhibit 1 was only introduced to illustrate the “type” of photograph that Long had taken of C. L. B. and so was cumulative of her testimony that Long had taken photographs of her in the nude. See Wright v. State,
2. Long сlaims he received ineffective assistance of counsel. “In order to prove ineffective assistance of counsel, [Long] must prove that his trial counsel was deficient, and that but for the deficiency, there is a reasonable probability that the outcome of his trial would have been different. There is a strong presumption that counsel was not deficient.” (Footnotes omitted.) Cornell v. State,
Long contends his trial counsel was ineffective in failing to call Judy Long and John Timothy Burns as witnesses. Judy Long was Long’s wife and the mother of C. L. B. and D. E., and Long and his wife were in the process of getting a divorce at the time of triаl. At the motion for new trial, Long’s trial counsel testified that he had considered calling Judy Long, but that “[t]here was a tremendous amount of bitterness between Judy and Jerry Long at that time.” Trial counsel testified that he hаd defenses he could present to the jury other than calling Judy Long as a witness.
With respect to trial counsel’s failure to call Bums, Burns’ testimony at the motion for new trial showed that Bums was the brother of Judy Long’s formеr husband. Burns testified that he heard from Judy Long that D. E. had accused him of child molestation, and Burns testified that such an allegation was false. Although evidence of false allegations of sexual abuse may be admissible to attack the credibility of a witness, see Smith v. State,
Long further argues that his trial counsel was ineffective in that he failed to adequately prepare for trial. However, it apрears Long’s trial counsel was active on Long’s behalf before trial, in filing and arguing pre-trial motions, and in contacting and meeting with pretrial witnesses. Long does not show that his counsel’s performance during trial shows any lack of preparation.
Judgment affirmed.