Jоseph R. Peters appeals his conviction of two counts of child molestation. On appeal, Peters contends that the trial court erred in several evidentiary rulings, that the verdict is contrary to the evidence, and that his trial counsel was ineffective.
The evidence viewed in the light most favorable to the verdict indicates that while the ten-year-old victim attended a sleep-over party at Cheryl Fincher’s home, Peters molested her. The victim testified thаt she was sleeping on the living room floor by the couch when Peters twice put her hand on his “private part” and moved it up and down. She testified that his “privatе part” was soft.
Detective Lee testified that the viсtim told him what had happened. The victim’s statement was consistent with what she told her mother and another officer. Detective Lee testified that Brenda Finсher stated she did not know whether to believe the victim. Detective Lee further testified that he talked with Peters, who was intoxicated, and Peters vehemently denied the allegations. Peters also told Detective Lee that due to a medical condition it was impossible for him to achieve an erectiоn.
Sergeant Hart testified that the victim’s statement to him was consistent with her previous statements. He further testified that Peters denied the allegations, and stated thаt even had he done the acts, he would deny them. Peters denied being intoxicated when he talked to Detective Lee. Peters testified that he did not molest the victim. He admitted that he drank beer until he was drunk. He testified that he did not even know the girls slept in the same room with him until the next morning. Additionally, Peters testified that even if he had committed the alleged acts of molestation he would not admit it to the jury.
1. By two enumerations of error, Peters questions the sufficiency of the evidenсe; first, on general grounds, and second specifically regarding lack of evidence of intent. Peters’ challenge in both regards fails.
As an appellаte court, we determine only sufficiency of the evidence, and we do not “weigh the evidence or determine witness credibility. The jury is the arbiter of all cоnflicts in the evidence, and having resolved such issues against the defendant, if there is evidence to support the verdict, the trial court does not err in rendering final judgment on the verdict.” (Citations and punctuation omitted.)
Platt v. State,
Peters contends that the State failed to prove intent, arguing that his voluntary intoxication precluded him from forming the requisite intent. “To establish a voluntary intoxication defense, [Peters] would have had to show that the intoxication had ‘resulted in the alteration of brain function so as to negate intent. Even then, the brаin function alteration must be more than temporary.’
Horton v. State,
2. Peters asserts that the triаl court erred in allowing the victim’s mother in the courtroom during the victim’s testimony, in violation of the rule of sequestration.
The rule of sequestration is expressed in OCGA § 24-9-61 which “plainly allows latitude in its application. . . . [T]he trial court is vested with the discretion to make exceptions to this rule; and unless the discretion is abused, the dеcision will not be reversed on appeal.”
Chastain v. State,
In the present case, the victim became upset while testifying. The State requested that the victim be exсused as a witness so that the victim’s mother could testify and then remain in the courtroom while the victim
3. Peters contends his trial counsel was ineffective because he did not investigate prior molestation charges brought by the victim. The record on appeal does not contаin a transcript of the motion for new trial hearing. Therefore, “we must presume that [Peters] failed to meet his burden of proving the ineffectiveness of his trial counsel.”
Sorrells v. State,
4. By two enumerations of error, Peters contends the trial court erred in limiting his cross-examination of the victim. First, Peters contends the trial court erred in denying him the opportunity to cross-examine the victim about her prior allegedly false allegations of molestation made against other men. Secоnd, Peters contends the trial court erred in failing to allow him to cross-examine the victim regarding her distrust of men. This issue is related to the court’s ruling regarding evidencе of prior false allegations, because the questions asked by Peters’ counsel were designed to elicit such information.
In
Smith v. State,
In the present case, the trial court did not allow the cross-examination because Peters failed to offer any evidence that the prior аllegations were false. The trial court stated that a hearing would not be conducted because no motion was filed and there had not been a “threshold showing” that the previous molestation allegations were false.
Peters was not required to make a threshold showing before he was entitled to a hеaring. A hearing is required so that the court can determine from the evidence presented therein whether or not a reasonable probability of fаlsity exists. Id. See also
Smith,
supra. As Peters was entitled to a hearing on this issue, we remand the case and direct the trial court to conduct a hearing to determine if the evidence was admissible under the proper standard. If the trial court determines that the evidence was admissible, Peters is entitled to a new trial; hоwever, if the trial court determines that the evidence was not admissible, a new trial is not necessary, and Peters’ convic
tion is affirmed. Peters is granted leave to file a new appeal within 30 days of a trial court’s decision adverse to Peters on this issue. See
Shelton v. State,
Judgment affirmed on condition, otherwise reversed.