A jury fоund David Edward Maurer guilty of child molestation. Following the denial of his amended motion for new trial, Maurer appeals, asserting several claims of error. Having reviewed these claims, we discern no error and affirm.
Construed in favor of the verdict, the evidence showed that in July 2007 Maurer was watching a movie in the garage while lying on a blow-up mattress with his then ten-year-old stepdaughter V. G. and
V. G. took the stand, and when asked about what occurred in July 2007 she responded, “I don’t want to talk about it,” and repeated that assertion throughout her testimony. She explained that Maurer “was a great father to all of us and we cared very much about him and I don’t want to talk about it and I don’t want to see him get prosecuted or anything. That’s why I don’t want to talk about it.” When asked why she “can’t come in here and tell the truth about what happened,” V. G. stated, “Because we had forgave [sic] him a long time ago and I don’t want anything to happen to him.” And when asked “what did you forgive him for?,” she replied, “I don’t want to say.” She did state, however, that Maurer was her stepfather, that he lived with her and her family in July 2007, that during that month, she was watching a movie with Maurer and her younger brother in the garage, and that her younger brother fell asleep. She acknowledged that she spoke with a forensic interviewer, stated that what she told the interviewer was the truth, and admitted that she had told her older brother B. G. “about something that happened.”
The forensic interviewer testified that she interviewed V. G. in January 2009. Using an anatomical drawing, V. G. indicated that Maurer made her touch his penis. In the forensic interview, admitted into evidence and played for the jury, V. G. stated that she was lying between Maurer and her younger brother while watching a movie in the garage. She explained that Maurer pushed his shorts down, grabbed her hand, put it on his penis, and moved it up and down. She said that Maurer was drunk and was “pushing her down” under the covers. V. G. explained further that something white “squirted out” and onto her forehead. She heard Maurer say “I’m sorry, I’m sorry,” as he fell asleep.
V. G. told the interviewer that the next day, she told B. G. what happened the night before and that B. G. told her mother the following week. She stated that the three of them discussed the incident as a family and that she forgave Maurer. Near the end of the interview, V. G. stated that she had nightmares following the incident.
V. G.’s older brother, B. G., took the stand and when asked about “something troubling [him] in July of 2007,” he responded, “I don’t
V. G.’s mother took the stand and initially stated that she did not “want to answer аny questions” and that she “want[ed] to end this. I don’t want to see [Maurer] prosecuted. I care a lot about him.” When the trial court directed her to answer the questions posed by counsel, the mother stated that B. G. “told me that one night when we were at home watching movies the kids decided to go watch a movie... he told me that [V. G.] had told him what — that [V. G.] told him that next morning that [Maurer] had [V. G.] massage his private ... his penis.” She stated further that B. G. told her he observed “some stuff on [V. G.’s] hair, just some white stuff.” The mother testified that she asked V. G. “if what [B. G.] was saying was true and shе just nodded her head. . . . She said yes. She nodded [her head] and was crying.” When she later asked V. G. exactly what happened, V. G. told her that Maurer had her touch and massage his penis and that V. G. demonstrated that she did so “with her hand going up and down.” She explained further that she, V. G. and B. G. “talked about it... and we decided to give him another chance because we believe he was drunk. He had been drinking a lot at the time.”
A detective testified that the mother told her that “in July of 2007 [Maurer] had made her daughter, [V. G.], touch his private. It was disclosed to her by her older son when [V. G.] woke up ... he saw her and she had some stuff on her head and in her hair.” Maurer agreed to speak with police, and in a recorded interview, admitted into evidence and played for the jury, Maurer told the detective that he did watch a movie on a mattress with V. G. and her younger brother in the garage and that the three of them fell asleep. But he explained that he had no memory of what happened that night and that he was “excessively’ drunk. At different times during the interview, Maurer stated he did not beliеve that he had V. G. touch him, but at other points he stated that it must be true because it was what he was told, and that he “can’t see [V. G.] making it up.” Maurer explained that his family had forgiven him and that they were trying to move past the incident in the hopes that V. G. would forget.
1. Maurer argues that the evidence was insufficient to sustain his conviction.
On appeal of a criminal conviction, this Court’s duty is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact*588 could have fоund the essential elements of the crime beyond a reasonable doubt. . . . Jackson v. Virginia,443 U. S. 307 , 319 ([III]) (B) (99 SC 2781, 61 LE2d 560) (1979). The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.
(Citations and punctuation omitted.) Walker v. State,
2. Maurеr argues that his Sixth Amendment right to confrontation was violated because the trial court failed to compel V. G. to testify. V. G. took the stand and testified, but refused to answer questions concerning what occurred on the night she and her younger brother were in the garage with Maurer. She did state, however, that what she told the forensic interviewer was the truth, and that she had also told B. G. about the incident.
Under [former] OCGA § 24-3-16,[1 ] hearsay statements by underage victims of sexual abuse are admissible in evidence by the testimony of the person or persons to whom made 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 trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under [former] OCGA § 24-3-16 only if the trial court abused its discretion.
The Supreme Court of Georgia has recently held that to comport with the Confrontation Clause, the child whose statements are at issue must actually testify at trial. Hatley v. State,
3. Maurer argues that the State was allowed to improperly introduce hearsay through its questioning of V. G. But because, as Maurer acknowledges, he made no objection to the State’s questioning of V. G. on this ground, the issue is waived. See Holt v. State,
4. Maurer contends that he did not receive a fair Jackson-Denno
Maurer argues that the trial court’s comments indicated that it had already determined that he was guilty of the charge against him, and that therefore any determination as to the admissibility of his statement “could not have been made fairly with an eye toward the requirements of Jackson v. Denno.” But the court’s willingness to
5. Maurer argues that it was error to allow an attorney not licensed to practice law in Georgia to present argument on his behalf. Prior to the start of trial, Maurer’s trial counsel asked the trial court for permission to allow another attorney to assist him: ‘Tour Honor, I had a motion on David Ward who is an attorney who’s licensed in North Carolina and has his application to transfer here to Georgia pending[.] I would ask if the court would admit him to assist me at trial.” After the State noted that it had no objection, the trial court agreed: “Well, I’ll so admit him and allow him to sit with you at the counsel table.”
Maurer now argues that because there was no showing of a verified application as required by the Uniform Superior Court Rules (see Uniform Superior Court Rule 4.4 (D) (1)) and no discussion of the parameters of Ward’s ability to assist, Ward’s performance on his behalf was a nullity, and he was therefore denied the effective assistance of counsel. But Maurer was represented by trial counsel with the assistance of Ward, who only argued the motion for directed verdict on Maurer’s behalf. And in the absence of a showing that Maurer was prejudiced in some way by Ward’s argument, i.e., that the outcome of the ruling on his motion for directed verdict would have been different otherwise, his claim here that he received per se ineffective assistance is without merit. See, e.g., Cornwell v. Dodd,
6. Maurer contends that he received ineffective assistance of counsel in several other respects.
To prevail on a claim of ineffective assistance, [Maurer] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance.*591 Strickland v. Washington,466 U. S. 668 , 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To show that the performance of his lawyer was deficient, [Maurer] must prove that [he] performed [his] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. And to show that he was prejudiced by the performance of his lawyer, [Maurer] must prove a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, [supra,]466 U. S. at 694 (III) (B). This burden, though not impossible to carry, is a heavy one.
(Citations and punctuation omitted.) Arnold v. State,
(a) Maurer contends that trial counsel was ineffective in failing to object that an incompetent juror was allowed to remain on the jury panel. The record reveals that at the start of voir dire examination, the court questioned the panel of jurors in accordance with OCGA § 15-12-164 (a) (l)-(4).
Maurer complains that counsel was ineffective in failing to object that this juror was allowed to remain seated with the panel and questioned concerning his bias in the presence of the remaining qualified jurors. OCGA § 15-12-164 (c) provides: “If a juror answers any of the questions set out in subsection (a) of this Code section so as
(b) Maurer complains that counsel should have objected to double hearsay through V. G.’s mother and triple hearsay through the detective as to what V. G. told B. G. and what B. G. told his mother about what occurred in the garage. But this evidence was cumulative of both the statements given by V. G. during her forensic interview and the acknowledgment during her testimony that she first told B. G. about the incident involving Maurer and that she told the forensic interviewer the truth. Therefore, there cоuld be no harm in the admission of this evidence. See Obeginski v. State,
(c) Maurer argues that trial counsel failed to object to the State’s improper impeachment of V. G.’s brother, B. G., after B. G. repeatedly testified that he did not want to answer questions. The State questioned B. G. concerning statements he made to the prosecutor the Friday before trial. The State asked: “Last Friday at your house do you remember telling me that [V. G.] had told you that the defendant made her grab his penis and demonstrated how he did it? Do you remember that?” B. G. responded, “I don’t want to answer that, anything, no questions.” But as explained above in Division 6 (b), this was cumulative of V. G.’s statements to the forensic interviewer and her acknowledgment that she told the interviewer the truth and told B. G. about the incident first.
(e) Maurer argues that trial counsel was ineffеctive in initiating a line of questioning that suggested Maurer was guilty of the charged offense. During cross-examination, trial counsel asked V. G.’s mother, “why do you believe [Maurer] wouldn’t do this again?” The State objected to the question on the ground that it “calls for speculation and . . . goes to the ultimate issue.” The trial court overruled the objection, and V. G.’s mother answered, “Because I know he’s a good person. I know he had counseling. I know he had a lie detector test and I know he had a psychosexual test and he passed both. And I just know him. I know he’s a really good person.”
Trial counsel testified that he asked the question in order to elicit testimony from the mother
about the psychosexual and the polygraph and that [Maurer’s] not a pedo[ph]ile. . . . Because they were favorable to him. Polygraphs don’t come in period, but we were hoping she would reference the fact she did not believe he was a pedo[ph]ile, not only that she didn’t believe it but there was empirical data that shows he’s not a pedo[ph]ile.
In light of counsel’s stated strategy, “we must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Citation and punctuation omitted.) Contreras v. State,
(f) Maurer complains that trial counsel failed to review with him his videotaped statement and V. G.’s forensic interview. Triаl counsel testified that he did in fact review with Maurer his videotaped statement to police. And “[i]t is within the trial court’s discretion to resolve conflicting testimony between trial counsel and a defendant at a hearing on motion for new trial.” (Citations and punctuation omitted.) Adkins v. State,
(g) Maurer claims that trial counsel was ineffective in relying on a “sole defense” which had no legal basis. Maurer was charged with having V. G. touch his penis “with the intent to arouse and satisfy the sexual desires of [Maurer] and the [victim].” Trial counsel argued against the court’s giving the State’s request to charge that where an indictment charges a crime in two ways and uses the conjunctive “and,” a defendant may be convicted by proof that he violated the statute in either way. Counsel informed the court that Maurer’s dеfense would be that the State had failed to prove the act was done to satisfy both his sexual desires and V. G.’s.
Maurer complains that he essentially had no defense because trial counsel relied on a defense that “the law has run contrary to ... for over a hundred years.” Maurer is correct that our appellate courts have consistently held that “[i]f a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, еven if the indictment uses the conjunctive rather than disjunctive
(h) Maurer asserts that trial counsel was ineffective in failing to object to the prosecutor’s closing argument. Specifically, Maurer complains that the prosecutor’s statement that “the [S]tate’s evidence is not rebutted. It’s not rebutted,” shifted the burden of proof to the defense. But the Supreme Court of Georgia has held that “[a] prosecutor may argue that the defendant has not rebutted or explained the State’s evidence.” Arrington v. State,
Maurer also argues that the prosecutor vouched for the State’s theory of the case by arguing facts not in evidence and by referring to his own personal beliefs about Maurer’s guilt. The prosecutor stated: “And then when your witness gets called into court they’re reluctant to tell what they had told before аnd you have to rely on different ways of trying to get the evidence in and you try your best to get the truth before the jury as you believe it to be and you present your case.” While trial counsel was not asked about his failure to object to this particular statement, counsel testified that he did not typically object to closing argument because it would “draw the jury’s attention” to such statements. See, e.g., Braithwaite v. State,
a рrosecutor is granted wide latitude in the conduct of closing argument, the bounds of which are in the trial court’s discretion; within the scope of such latitude is the prosecutor’s ability to argue reasonable inferences from the evidence, including any that address the credibility of witnesses.
(Citation and punctuation omitted.) Scott v. State,
(i) Maurer contends that counsel was ineffective in failing to object at sentencing to certified copies of his prior convictions under аn alias. But counsel testified at the hearing on the motion for new trial that he and Maurer had discussed the prior convictions and that he would have objected to them if he “had a good faith basis to believe that wasn’t [Maurer].” Under these circumstances, trial counsel’s decision not to object was not unreasonable and cannot provide a ground for ineffectiveness. See Morrison v. State,
Judgment affirmed.
Notes
This Code section was effective until January 1, 2013.
Jackson v. Denno,
In a felony trial, on voir dire examination the jurors shall be asked: “Have you, for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused?”; “Have you any prejudice or bias resting on your mind either for or against the accused?”; “Is your mind perfectly impartial between the state and the accused?”
The juror explained that he has “workjed] dosel/’ with an unnamed organization for a number of years that “works in this area and I believe it’s going to make me bias[ed] on the [Sjtate’s side.”