A jury found Cecil Ray Wright guilty of one count of child molestation, and he appeals his conviction. Wright argues that he received ineffective assistance of trial counsel because counsel failed to object to testimony of the victim’s aunt. He argues that the testimony was bolstering, commented on the ultimate issue, and contained hearsay. We hold that the testimony was neither bolstering nor improperly commented on the ultimate issue. We also hold that
1. Facts.
On appeal from a criminal conviction,
the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia,443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Cordy v. State,
Viewed in this light, the evidence shows that a group of adults and children, including Wright, the victim, and S. A., the daughter of the victim’s father’s fiancée, gathered to help the victim’s aunt move to another residence. At one point, S. A. told the aunt that she needed to speak with her. The aunt spoke with S. A. and the victim in the bathroom. In the victim’s presence, S. A. told the aunt that the victim had said that Wright put his hand in the victim’s pants. The victim was crying and could not speak, but said “yeah” when the aunt asked whether Wright had done that.
The victim, who was nine years old at the time of trial, testified at trial that while she was helping Wright find his beer, he grabbed her arm, covered her mouth, put his hand in her pants, and touched her private. A video recording of the victim’s interview at a child advocacy center was played for the jury. In the video recording, the victim related that Wright grabbed her, covered her mouth, put his hand down her pants, and rubbed her private. Wright testified, denying that he touched the victim.
Wright does not dispute that the evidence is legally sufficient to sustain his conviction, and we conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Wright was guilty of the crime of which he was convicted. Jackson, supra,
2. Ineffective assistance of counsel.
Wright argues that trial counsel was ineffective for failing to object to certain portions of the aunt’s testimony, which, he contends, amounted to improper bolstering, commented on the ultimate issue
To prevail on his claim of ineffective assistance of counsel, Wright was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington,
The testimony of which Wright complains occurred during the direct examination of the aunt, while she was describing the conversation in the bathroom with S. A. and the victim:
Q: Try to tell us the best you can what happened once you entered the bathroom.
A: When I got them to where I was in the bathroom, because the bathroom is separated, she — I said: What is it? And [S. A.] said: [The victim] told me that Cecil put his hand down her pants. And [the victim] was just — she was crying. She couldn’t even talk. And [S. A.] was — her eyes were real big and she was shaky and she was so scared.
Q: Did [the victim] enter into the conversation any at the point early in the bathroom?
A: When I asked her what — he really done that, she said yeah. But it was like — she was crying. And I knew.
Q: Can you try to describe for the jury what it was you saw and heard, anything that helped you know how you knew?
A: [The victim’s] been my world since she was born and I know her manners and I know how she is normal.... I could not believe he done that.
Q: During the ride [from the aunt’s house to the victim’s house], did you and the girls discuss what happened further?
A: I don’t remember. All I remember is thinking I can’t believe he done this. . . .
Q: And based on the children’s statements to you, what image was in your mind about what had happened?
A: I could see him doing it. I could see him sticking his hand down her pants and her little innocent face not understanding what’s going on.
Q: Now, when he reached [the victim’s house], what did you find when you got there?
*661 A:... And, so, then, I just told [the victim’s father’s fiancée]: Cecil touched [the victim].
(a) The aunt’s testimony was not bolstering.
Wright argues that the aunt’s responses to the prosecutor’s questions impermissibly bolstered the credibility of the victim, and that trial counsel was ineffective for failing to object or to take other corrective action. “It is erroneous ... for a witness, even an expert, to bolster the credibility of another witness by expressing an opinion that the witness is telling the truth.” Noe v. State,
None of the aunt’s testimony “directly addresse[d] the credibility of the victim.” Rather, the aunt was describing the circumstances of the outcry and the victim’s demeanor. Her testimony that she “knew” after hearing about the outcry is vague and ambiguous, and she never elaborated what she knew. Because the aunt did not directly comment on the veracity of the victim, her testimony was not improper. See Roebuck v. State,
Because this testimony was not bolstering, counsel’s failure to object was not deficient. See Hayes v. State,
(b) The aunt’s testimony did not comment on the ultimate issue.
Wright argues that the aunt’s testimony was also improper because it commented on the ultimate issue of Wright’s guilt. It is true that, under our former Evidence Code, “generally speaking, a trial witness [could] not give opinion testimony on ultimate matters within the jury’s province. . . Dubose v. State,
(c) Any improper hearsay testimony was merely cumulative.
Wright argues that trial counsel was ineffective for failing to object to the aunt’s hearsay testimony regarding what S. A. told her. Specifically, he complains about the aunt’s testimony that “[S. A.] said: [The victim] told me that Cecil put his hand down her pants.” Any error in the admission of this testimony was harmless. S. A. herself testified about the victim’s outcry to her, and that testimony was admissible under the child hearsay statute.
3. Cumulative errors.
Wright further argues that his counsel’s alleged errors, taken together, show a reasonable probability that but for counsel’s errors the result of the proceeding would have been different. See Schofield v. Holsey,
Judgment affirmed.
Notes
Former OCGA § 24-9-65 provided: “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. If the issue shall be as to the existence of a fact, the opinions of witnesses shall be generally inadmissible.” OCGA § 24-7-704 (a) of Georgia’s new Evidence Code, which took effect on January 1,2013, almost two years after Wright’s trial, says that “testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
Former OCGA § 24-3-16, the child hearsay statute applicable at the time of trial, provided:
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 or performed with or on another in the presence of the child 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.
The statute was modified and adopted in the new Evidence Code at OCGA § 24-8-820, effective January 1, 2013.