A Camden County jury found Donnie Roberson guilty of two counts of child molestation and three counts of felony sexual battery. Following the denial of his motion for new trial, Roberson appeals and contends that the evidence was insufficient to support his conviction, the trial court erred in admitting similar transaction evidence, his trial counsel was ineffective, and the trial court erred in instructing the jury on the credibility of a witness.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We*805 neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia,443 U. S. 307 (99 SCt 2781 , 61 LE2d 560) (1979).
(Citation omitted.) Stepho v. State,
So viewed, the evidence demonstrates that in January 2008, the then 14-year-old victim was visiting her grandmother and Roberson, who was her step-grandfather. While her grandmother was away, Roberson approached the victim while she was in bed and touched her vagina and breast. During Thanksgiving 2008, the victim was asleep on the sofa while visiting her grandmother and Roberson when Roberson pulled down her shorts and pulled up her shirt and “started touching [her]... vagina and... breasts.” The victim pretended to be asleep and Roberson “pulled down his shorts and . . . took out his penis.” When the victim’s uncle walked into the room, Roberson quickly covered the victim, sat on the floor and pretended like nothing happened. In December 2008, the victim told her great-aunt about the incident, and when the great-aunt later confronted Roberson, he told her that he “needed help,” “[t]hat he [had] already talked to God . . . and confessed to God about this,” and that he had “touched [the victim] here and there.” Thereafter, the victim’s “mother”
At the trial, the State presented evidence of two similar transactions. As to the first incident, the great-aunt testified that in 1985 or 1986, when she was 14 years old, she was riding in a car with Roberson when he stopped the car, turned off the engine, touched her leg and said that he “wanted to give [her] a little money because he wanted some of this pussy.” The two struggled, but she escaped from his car and hid until Roberson drove away. The great-aunt said that she told her mother and her sister, who was Roberson’s wife, but when confronted, Roberson told them that he had never intended to hurt her, and nothing further was done.
1. Roberson contends that the evidence was insufficient to sustain his convictions for the crimes charged because there was no evidence corroborating the victim’s testimony and no other witnesses had seen anything happen between him and the victim. This argument is unpersuasive. Contrary to Roberson’s contention otherwise, “Georgia law... does not require corroboration of a child molestation victim’s testimony. Thus, the testimony of the victim [ ], standing alone, was sufficient to support [Roberson’s] convictions.” (Citations and punctuation omitted.) Brown v. State,
2. Roberson also contends that the trial court erred in admitting similar transaction evidence involving the victim’s mother and great-aunt. He contends that the evidence should not have been admitted because the State did not sufficiently establish that he committed the similar transactions, the transactions were not sufficiently similar to the present allegations, and the time between the similar transactions and the present transaction was too remote.
The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.
(Footnote omitted.) Brown v. State,
Here, after conducting a pretrial hearing, the trial court admitted evidence of the two similar transactions for the purpose of showing Roberson’s course of conduct and lustful disposition toward victims of a certain age, and found that the requirements under Williams v. State,
Roberson does not challenge that the evidence was admitted for a proper purpose, but maintains that the State failed to prove that he committed the similar transactions because the only evidence presented was the victims’ testimony. However, “it is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible.” (Citations and punctuation omitted.) Whitman v. State,
Likewise, regarding his challenge to the similarity of the transactions, there is no requirement that similar transactions be absolutely identical to the charged crime. Perkins v. State,
Moreover, although Roberson contends that the previous transactions were too remote in time to the present acts, “[w]here, as here, the similar transaction evidence is otherwise admissible, a time lapse
In this case, we find no abuse of discretion in the trial court’s decision to admit evidence of Roberson’s past inappropriate sexual contact with female family members who were in the same age-group as the victim when the past acts occurred.
3. Roberson also contends that his trial counsel was ineffective for failing to submit any pretrial motions or jury instructions, and for failing to conduct any investigation of the case. We do not agree.
To prove his claim of ineffective assistance of counsel, Roberson must establish both prongs of the test set forth in Strickland v. Washington,
At the hearing on the motion for a new trial, trial counsel testified that he did not file any pretrial evidentiary motions because “there wasn’t a custodial statement. There wasn’t anything to suppress. We entered agreements on some things that weren’t coming in. Discovery
Further, although Roberson asserts that his trial counsel was ineffective for failing to file pretrial motions, more fully investigate his case, or submit certain jury instructions, he provides absolutely no argument as to how the outcome would have been different absent these deficiencies. To show prejudice, “[t]he likelihood of a different result must be substantial, not just conceivable.” (Citation omitted; emphasis supplied.) Hill v. State,
Thus, as Roberson has failed to demonstrate that his trial counsel’s performance was deficient or prejudicial, his ineffectiveness claim fails.
4. Roberson’s objection to what he contends was the use of “disfavored language” by the trial court in its jury instruction is also meritless. The trial court instructed the jury:
In passing upon credibility you may consider all the facts and circumstances of this case, the witness’s manner of testifying, their interest or lack of interest, their means and opportunity for knowing the facts which they testify about, the nature of the facts which they testify about, the probability or improbability of their testimony and of the occurrences which they testify about. You may also consider their personal credibility insofar as it may legitimately appear from the trial of this case. When you consider the evidence in this case if you find a conflict you should settle this conflict if you can without believing that any witness has made a false*810 statement. If you cannot do this, then you should believe that witness or those witnesses you think best entitled to belief. You must determine what testimony you will believe and what testimony you will not believe.
(Emphasis supplied.)
Even assuming that this language can be construed as a “presumption-of-truthfulness” charge which the Supreme Court of Georgia in Noggle v. State,
Judgment affirmed.
Notes
Roberson was tried in 2009, so Georgia’s new Evidence Code does not apply to this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).
The woman referred to as the victim’s mother is one of the grandmother’s sisters, and is also the victim’s great-aunt.
The officer in charge of the investigation did not testify at trial and apparently was in training at the time of the trial.
Pursuant to OCGA § 16-6-4 (a) (1), “A person commits the offense of child molestation when such person... [d] oes any 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....” “Aperson commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person,” OCGA § 16-6-22.1 (b), and “[a] person convicted of the offense of sexual battery against anychild underthe age of 16years shall be guilty ofafelony... .’’OCGA § 16-6-22.1 (d).