This case arises out of allegations that Tyson Carmin Metts forced his girlfriend’s minor daughter to orally sodomize him several times over a three-year period. The jury found Metts guilty of aggravated child molestation, child molestation, and false imprisonment. The trial court denied his amended motion for new trial. On appeal, Metts contends that there was insufficient evidence to convict him; that his due process rights were violated because the state acted with an improper motive in reindicting him; that the false imprisonment count of the indictment lacked the requisite specificity; that his false imprisonment and child molestation convictions should have been merged into his aggravated child molestation conviction; that his conviction and felony sentence for child molestation were improper based on the rule of lenity; that the trial court erred by charging the jury on prior consistent statements; and that the trial court failed to properly recharge on false imprisonment in response to a question from the jury. Additionally, Metts contends that he was denied effective assistance from his trial counsel. Finding no reversible error, we affirm.
1. Following a criminal conviction, a defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict.
Neugent v. State,
So viewed, the evidence showed that Metts was the boyfriend of the victim’s mother. He lived with the mother and her four minor children, including the victim, in an apartment and later in a house located in Fulton County. Metts often was home alone with the children while the mother was away at work.
On at least six separate occasions over a three-year period, Metts forced the victim to perform oral sex on him until he ejaculated in her mouth. While the victim was forced to perform oral sex, Metts sometimes would play pornographic movies on the television. On one occasion, Metts locked the door to the house and would not let the victim leave until she had engaged in oral sex. These acts of sexual abuse occurred when the victim was between the ages of six and nine years old.
During this time period, the victim told her mother several times that Metts was forcing her to perform oral sex on him. Eventually, *331 after the victim provided an accurate description of Metts’s penis, the mother forced Metts out of the home and took the victim to the hospital. The victim subsequently described the sexual abuse that had occurred to a police investigator and a forensic interviewer. As a result, the victim and her siblings were removed from the home, and both the mother and Metts were arrested and indicted for offenses relating to the sexual abuse. 1
At Metts’s trial, the state relied upon the testimony of the victim, her mother, and the police investigator and introduced into evidence a videotape of the victim’s forensic interview. Two of the victim’s siblings also testified that on one occasion, they had peeked into their mother’s bedroom and had seen Metts sitting on the bed with the victim’s head going up and down between his legs. In contrast, Metts took the stand and denied that he had ever forced the victim to perform oral sex or watch pornographic movies with him.
After hearing the testimony and viewing the videotaped forensic interview, the jury convicted Metts of aggravated child molestation, child molestation, and false imprisonment. Arguing that “[t]oo many doubts remain about this case,” Metts now challenges the sufficiency of the evidence supporting his three convictions. We conclude, however, that any rational trier of fact was entitled to find Metts guilty beyond a reasonable doubt of the offenses as charged.
Jackson,
(a)
Aggravated Child Molestation.
“A person commits the offense of child molestation when he or she does an immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). “Child molestation advances to aggravated child molestation with the addition of either physical injury to the child or sodomy. Sodomy, in turn, is defined as any sexual act involving the sex organs of one person and the mouth or anus of another.” (Footnotes omitted.)
Wright v. State,
The victim testified at trial that Metts forced her to perform oral sex on him until he ejaculated on at least six separate occasions. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Furthermore, the videotaped forensic interview and the testimony of the police investigator and the victim’s mother concerning what the victim told them were admissible as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16.
3
See, e.g.,
Lamb v. State,
(b) Child Molestation. The indictment averred that Metts committed child molestation “by causing [the victim] to view video images depicting adults engaged in sexually explicit conduct while in [Metts’s] presence, with the intent to arouse and satisfy [Metts’s] sexual desires.” Metts argues that there was insufficient evidence presented at trial that he “caus[ed]” the victim to view the pornographic video images. His argument is without merit.
The victim testified that she watched a “nasty movie” depicting sexual intercourse between a man and woman on more than one occasion in the company of Metts. In turn, the police investigator who interviewed the victim testified that the victim stated that Metts “had called her in to the bedroom, forced her to put his penis in her mouth, and he also had a pornographic movie on at that time that he was watching while ... he had her doing this to him.” The investigator further testified that the victim told him that Metts “forced her to perform oral sex on him while watching a pornographic movie.” Given thi,s testimony, it cannot be said that Metts played a merely passive role in the victim’s watching of the pornographic movie. Sufficient evidence was provided by the state to support Metts’s conviction for child molestation.
Jackson,
*333 (c) False Imprisonment. Tracking the language of the criminal statute, 4 the indictment averred that Metts committed false imprisonment in that “[he] did unlawfully detain [the victim], without legal authority and in violation of the personal liberty of said [victim].” The police investigator testified that the victim told him that on one occasion, Metts “had locked the house, would not let her out, called her into the bedroom, and forced her to perform oral sex on him.” The victim did not herself testify that Metts ever locked her in the house.
Metts contends that the investigator’s testimony was inadmissible hearsay because the victim’s statement that she was locked in the house was not a statement “describing any act of sexual contact or physical abuse performed with or on the child,” as required by the Child Hearsay Statute, OCGA § 24-3-16. As such, Metts contends that there was no competent evidence establishing the crime of false imprisonment. We are unpersuaded.
It is true that the victim’s statement that Metts locked her in the house and would not let her leave does not in itself describe an act of sexual contact or physical abuse if considered in a vacuum. But a child’s statement is admissible under the Child Hearsay Statute if it is “an inextricable part of the child’s description of the act of sexual abuse at issue.”
In the Interest of B. H.,
2. Metts next contends that his due process rights were violated *334 because the state acted with an improper motive in reindicting him. The record reflects that Metts was originally indicted on October 8, 2004, for the three charged offenses. The indictment averred that the false imprisonment and child molestation crimes occurred on August 3, 2004. At the request of the state, the indictment was later placed on the dead docket, and Metts was reindicted on October 12, 2004. The second indictment included the same three counts against Metts but added one count against the mother for cruelty to children. The mother subsequently entered an Alford plea on the cruelty to children count. The second indictment also was placed on the dead docket, and Metts was indicted for a third time on October 11, 2005. The third indictment removed the count against the mother and modified the false imprisonment and child molestation counts to allege that the two crimes occurred “between the 1st day of December, 2001 and the 3rd day of August, 2004, the exact dates unknown to the grand jurors.”
Metts has failed to prove any due process violation. There is no statute or case law that as a general rule precludes the state from reindicting a defendant on added or modified charges, as long as jeopardy has not yet attached to the first indictment, which undis-putably had not occurred here.
Zinnamon v. State,
[a] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. . . . [T]he initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.
(Footnotes omitted).
United States v. Goodwin,
An exception to this general rule exists where the subsequent indictment increases the severity of the charges in response to the
*335
defendant’s exercise of certain procedural rights, which raises the appearance of retaliation or prosecutorial vindictiveness. See
Black-ledge v. Perry,
3. Metts further argues that the false imprisonment count of the third indictment lacked the requisite level of specificity.
[A] contention that a count of the indictment lacks sufficient specificity is an attack on the form of the indictment, which must be addressed by filing a special demurrer to the indictment. Such a special demurrer must be filed before pleading not guilty to the indictment; otherwise, the matter is waived. Raising the issue for the first time on appeal as [Metts] has done here is too late.
(Citations and punctuation omitted.)
Smith v. State,
4. According to Metts, the trial court erred in failing to merge his false imprisonment conviction into his aggravated child molestation conviction. We discern no error.
Under Georgia law, convictions merge and multiple punishment is precluded if “[o]ne crime is included in the other.” OCGA § 16-1-7 (a) (1). But “[t]he rule prohibiting more than one conviction if one crime is included in the other does not apply unless ‘the same conduct’ of the accused establishes the commission of multiple crimes.”
Waits v. State,
The indictment averred that Metts committed false imprisonment by unlawfully detaining the victim in violation of her personal liberty and committed aggravated child molestation by forcing the victim to perform oral sex on him. As to false imprisonment, there
*336
was evidence that on one occasion, Metts locked the victim in the home and would not let her leave. As to aggravated child molestation, there was evidence that Metts forced the victim to perform oral sex on him on repeated occasions spanning several years. Since the false imprisonment and aggravated child molestation convictions could be sustained based on different conduct, separate convictions were appropriate. See
Waits,
5. Metts contends that the trial court also erred in failing to merge his aggravated child molestation and child molestation convictions because the latter crime was a lesser included offense of the former crime. Again, we discern no error.
While child molestation may be a lesser included offense of aggravated child molestation, where separate and distinct acts of molestation occur at different locations or on different dates, no merger occurs.
See Brewer v. State,
6. Metts maintains that his conviction and felony sentence for child molestation were improper because his alleged conduct also violated OCGA § 16-12-103 (a) (1), which makes it a misdemeanor of a high and aggravated nature to furnish or disseminate harmful material to a minor. 6 Metts argues that under the rule of lenity, he *337 could be prosecuted only for the misdemeanor offense. We disagree.
The rule of lenity entitles a defendant to receive the lesser of two penalties where the identical conduct would support either a felony or misdemeanor conviction. Velasquez v. State,
7. Metts argues that the trial court erred by charging the jury on prior consistent statements. In his view, the testimony of the police investigator concerning what the victim told him and the videotape of the victim's forensic interview were not admissible as prior consistent statements, rendering a charge on such statements improper. But regardless of whether the investigator's testimony and videotaped interview could be admitted as prior consistent statements, they were admissible under the Child Hearsay Statute, OCGA § 24-3-16, as "statement[sjj made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another." See, e.g., Lamb,
8. Metts further asserts that the trial court failed to properly recharge on false imprisonment in response to a question from the jury. We do not agree.
In its jury charge, the trial court properly instructed the jury on the elements of false imprisonment. During its subsequent deliberations, the jury submitted the following note to the court: “Please define false imprisonment — Can it be emotional or just i.e. locked door?” In response, the trial court recharged the jury on the elements of false imprisonment and then instructed the jury to consider that definition of the offense, in conjunction with the rest of the charges and the evidence as the jury found it to be, to determine whether Metts was guilty of false imprisonment. The trial court did not elaborate further.
“[T]his Court has traditionally deferred to the sound discretion of trial court judges in matters concerning the scope of a requested recharge.” (Footnote omitted.)
Duffie v. State,
9. Lastly, Metts contends that he was denied effective assistance from defense counsel in several respects.
The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.
(Citation omitted.)
Jones v. State,
(a) All three counts of the third indictment averred that the *339 crimes occurred between December 1, 2001, and August 3, 2004. Metts argues that his defense counsel was ineffective in failing to file a pretrial demurrer to require the state to identify a more specific date for the charged offenses. We do not agree because
[Metts] [has] not demonstrate[d] that the length of the period in which the indictment alleged the crimes were committed materially affected his ability to present a defense, which did not rely on an alibi or other time sensitive claim. Thus, even if the indictment was subject to a special demurrer, [Metts] failed to demonstrate a reasonable likelihood that, but for defense counsel’s failure to demur to the indictment, the outcome of the trial would have differed.
(Footnote omitted.)
Robbins v. State,
(b) The police investigator testified that after he arrived at the hospital where the victim had been taken by her mother, the mother stated to him that the victim had told her several times that Metts had forced her to perform oral sex on him. Metts argues that his defense counsel was ineffective in failing to object on hearsay and double hearsay grounds to the investigator’s testimony concerning what the mother had told him that the victim had told her. We are unpersuaded.
While the investigator’s testimony was double hearsay, each layer of hearsay was admissible under the applicable rules of evidence. First, the underlying out-of-court statement of the victim to her mother concerning what Metts had done to her was admissible under the Child Hearsay Statute, OCGA § 24-3-16. See
Lopez v. State,
Additionally, even if defense counsel was deficient in failing to object to the investigator’s testimony, Metts cannot establish that he
*340
was prejudiced as a result. The victim herself testified that she told her mother several times that Metts had forced her to perform oral sex on him. Thus, the police investigator’s testimony was cumulative of other legally admissible testimony from the victim which established that the mother had been informed on several occasions of the forced sodomy.
8
See
Kirkland v. State,
(c) According to Metts, his defense counsel was ineffective in failing to request that the jury be charged on the misdemeanor offense of furnishing or disseminating harmful material to a minor, OCGA § 16-12-103 (a) (1), which he contends was a lesser included offense of the child molestation count. We disagree because the trial court would not have been required to give such a charge, even if furnishing or disseminating harmful material to a minor was a lesser included offense, and even if defense counsel had requested a charge on it.
“The failure to give a requested charge on a lesser included offense when the evidence warrants it is error.” (Citation omitted.)
Damare v. State,
(d) We have reviewed Metts’s remaining ineffective assistance claims, which are predicated on the same claims of error discussed in prior divisions of this opinion, and find them to be without merit.
Judgment affirmed.
Notes
Ultimately, the mother entered a plea of guilty to one count of cruelty to children in the third degree pursuant to
North Carolina v.
Alford,
To the extent that Metts’s sufficiency argument is predicated on alleged discrepancies in the witnesses’ testimony, we note that “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Citation and punctuation omitted.)
Bilow v. State,
OCGA § 24-3-16 provides:
A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another... is 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.
OCGA § 16-5-41 (a) provides: “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”
Compare OCGA § 17-7-53.1 (“If, upon the return of two ‘true bills’ of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.”) (emphasis supplied).
OCGA § 16-12-103 (a) (1) provides:
It shall be unlawful for any person knowingly to sell or loan for monetary *337 consideration or otherwise furnish or disseminate to a minor: Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors[.]
A person convicted of this offense is guilty of a misdemeanor of a high and aggravated nature. OCGA § 16-12-105.
We note that “the better practice is for the trial court not to charge at all on prior consistent statements and leave the matter to the arguments of counsel.”
Whitaker,
“[W]here a witness testifies as to what he or she told another person, it is not hearsay.” (Citation and punctuation omitted.)
Smashum v. State,