Shaum v

State, 355 Ga. App. 513, 844 S.E.2d 863, 2020 Ga. App. LEXIS 343 (2020). Procedure employed by court satisfactory. — When the trial court ultimately found a child victim’s statements reliable and admitted the statements, and obviously would have done the same following a separate hearing, any conceivable error arising from the procedure employed by the trial court would have been of the defendants’ own making since the defendant’s persuaded the trial court to review the child’s video-recorded statements and assured the court at the time that the procedure was satisfactory. Newman v. State, 286 Ga. App. 353, 649 S.E.2d 244 349, 2007 Ga. App. LEXIS 777 (2007) (decided under former O.C.G.A. § 24-316). Statements of four-year-old properly admitted. — Trial court did not err in exercising the trial court’s broad discretion to admit a four-year-old child’s out-ofcourt statements under the child hearsay statute, former O.C.G.A. § 24-3-16, with regard to defendant’s convictions for aggravated child molestation and two counts of child molestation. Given the totality of the circumstances, the trial court was authorized to find sufficient indicia of reliability to admit the child’s hearsay statements based on: (1) the child’s tender years; (2) a therapist testifying that there was no indication that the child had been coached; and (3) an interview report that purportedly raised questions about coaching and the reliability of the statements was never introduced into evidence at trial. Brumbelow v. State, 289 Ga. App. 520, 657 S.E.2d 603, 2008 Ga. App. LEXIS 141 (2008) (decided under former O.C.G.A. § 24-3-16). Interval of time between offenses and interview. — Passage of an interval of time between the commission of the offenses and the making of the videotape does not preclude any possibility of spontaneity; the relevance of such chronological intervals must be considered along with other factors, but there is no authority for a bright line rule precluding admission of an interview. Knight v. State, 210 Ga. App. 228, 435 S.E.2d 682, 1993 Ga. App. LEXIS 1111 (1993) (decided under former O.C.G.A. § 24-3-16). Statement made days, weeks, or months after incident. — Fact that the statement is made days, weeks, or even several months after the alleged incident, in and of itself, does not make the statement unreliable. Gregg v. State, 201 Ga. App. 238, 411 S.E.2d 65, 1991 Ga. App. LEXIS 1307 (1991), cert. denied, No. S92C0074, 1991 Ga. LEXIS 893 (Ga. Nov. 1, 1991) (decided under former O.C.G.A. § 24-3-16). Admission of similar transactions. — Nothing in former O.C.G.A. § 24-3-16 restricted the statement to use solely in connection with the prior incident, and in child molestation cases, the appellate 24-8-820 court had consistently upheld the admission of similar transactions involving incidents for which the defendant was not on trial. Guest v. State, 216 Ga. App. 457, 454 S.E.2d 622, 1995 Ga. App. LEXIS 184 (1995) (decided under former O.C.G.A. § 24-3-16). Fathers of the two similar transaction victims were allowed to give hearsay testimony about the victims’ statements that defendant had molested the victims, because this sort of hearsay testimony, describing a child’s statement about sexual abuse, is admissible similar transaction evidence under former O.C.G.A. § 24-316. Deal v. State, 241 Ga. App. 879, 528 S.E.2d 289, 2000 Ga. App. LEXIS 65 (2000) (decided under former O.C.G.A. § 24-3-16). Statements admissible as substantive evidence. — In a criminal prosecution for sexual and non-sexual acts committed against a child, the jury was allowed to consider the child’s out-of-court statements as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-3-16, and conflicts between the child’s testimony at trial and out-ofcourt statements were for the jury to resolve. Manders v. State, 281 Ga. App. 786, 637 S.E.2d 460, 2006 Ga. App. LEXIS 1252 (2006) (decided under former O.C.G.A. § 24-3-16). Subsequent report of molestation by another not admissible. — Subsequent report by the victim of molestation by another was neither prior to nor necessarily inconsistent with the victim’s earlier report that the defendant was the victim’s only molester, and was not admissible as impeaching evidence. Thompson v. State, 187 Ga. App. 152, 369 S.E.2d 523, 1988 Ga. App. LEXIS 657 (1988) (decided under former O.C.G.A. § 24-3-16). Testimony of child sodomy victim’s accusation allowed. — Trial court did not err in allowing testimony of the child’s accusation that defendant committed the acts which constitute the crime of aggravated child molestation since the victim told the victim’s grandmother that defendant orally sodomized the victim and that defendant forced the victim to perform acts of oral sodomy and the victim’s mother’s testimony that she had never dis- 245 Statements Admissible (Cont’d) cussed oral sodomy with the three-yearold victim and that she had never known the child to make up stories. Williams v. State, 204 Ga. App. 878, 420 S.E.2d 781, 1992 Ga. App. LEXIS 1034 (1992) (decided under former O.C.G.A. § 24-3-16). Child sodomy victim’s statements qualified as “outcry” arguably so near to the event and so free of afterthought and forethought, connivance, or “reflective thought,” as to be part of the res gestae, and so as to be evidence of the crime itself, and not merely a later statement by the child about the crime, as it might have been under former O.C.G.A. § 24-3-16, where these outcries occurred while the child was asleep the night the child returned home after the child’s mother picked the child up at the child’s grandfather’s house where the crime allegedly occurred. Godfrey v. State, 187 Ga. App. 319, 370 S.E.2d 183, 1988 Ga. App. LEXIS 685 (1988) (decided under former O.C.G.A. § 24-3-16). Statement as part of res gestae of child molestation charge. — Child’s statement to an investigative agent regarding a “game” in which the defendant, the child victim, and others removed articles of their clothing were admissible as describing part of the res gestae of the crime of child molestation. Berry v. State, 235 Ga. App. 35, 508 S.E.2d 435 (decided under former O.C.G.A. § 24-3-16). Testimony by the mother of a childmolestation victim concerning allegations made by her child to her against defendant was properly admitted since the court considered atmosphere, circumstances, spontaneity, and demeanor in judging the reliability of the statement. Ortiz v. State, 188 Ga. App. 532, 374 S.E.2d 92, 1988 Ga. App. LEXIS 1125 (1988) (decided under former O.C.G.A. § 24-3-16). Testimony of victim’s mother concerning statements made to her by victim was admissible. Dupree v. State, 206 Ga. App. 4, 424 S.E.2d 316, 1992 Ga. App. LEXIS 1551 (1992) (decided under former O.C.G.A. § 24-3-16). State complied with former O.C.G.A. § 24-3-16 by having the eight-year-old 24-8-820 sexual molestation victim present at the courthouse and the trial court found indicia of reliability in a video interview of the child and the mother’s testimony as to what the child told her when she interrupted the defendant with his pants down in a closed room with the child; the defendant did not object on Confrontation Clause grounds, waiving that issue. Matabarahona v. State, 335 Ga. App. 25, 780 S.E.2d 731, 2015 Ga. App. LEXIS 746 (2015), cert. denied, No. S16C0507, 2016 Ga. LEXIS 220 (Ga. Mar. 7, 2016) (decided under former O.C.G.A. § 24-3-16). Mother’s testimony following victim’s recanting of original statement. — Although the victim was not under the age of 14 at the time the statements were made, this did not affect the admissibility of the testimony of the victim’s mother and a detective because the victim’s veracity was placed in issue after the victim signed an affidavit recanting the victim’s original statement, and the victim was present at trial and was thoroughly crossexamined about the truthfulness of the victim’s original statement. Frady v. State, 245 Ga. App. 832, 538 S.E.2d 893, 2000 Ga. App. LEXIS 1105 (2000), cert. denied, No. S01C0077, 2001 Ga. LEXIS 172 (Ga. Feb. 16, 2001) (decided under former O.C.G.A. § 24-3-16). Statement made through interpreter admissible. — Statements made through an interpreter by an 11-year-old victim of child molestation to witnesses who asked the victim questions were admissible through testimony of the witnesses even though the interpreter did not testify at the trial. Davis v. State, 214 Ga. App. 360, 448 S.E.2d 26, 1994 Ga. App. LEXIS 901 (1994) (decided under former O.C.G.A. § 24-3-16). Witness statements admissible despite child’s unresponsiveness. — Trial court did not err in refusing to strike the testimony of adult witnesses who related a child molestation victim’s statements to the witnesses in spite of the victim’s unresponsiveness as a witness when called by the court. Smith v. State, 228 Ga. App. 144, 491 S.E.2d 194 (decided under former O.C.G.A. § 24-3-16). Child who told adults that defendant placed the defendant’s finger inside her 246 vagina was not unavailable within the meaning of former O.C.G.A. § 24-3-16 because she was unresponsive when she was asked questions in court, and the trial court’s decision allowing adults to testify about out-of-court statements the child made to the adults was correct. Bell v. State, 263 Ga. App. 894, 589 S.E.2d 653, 2003 Ga. App. LEXIS 1372 (2003) (decided under former O.C.G.A. § 24-3-16). Physical appearance of victim at trial all that is required. — Availability requirement under former O.C.G.A. § 243-16 was met even if the victim took the stand and was incapable of reiterating the accusations against the defendant or was uncommunicative or unresponsive; the child needed only physically appear at trial. Jenkins v. State, 235 Ga. App. 53, 508 S.E.2d 710 (decided under former O.C.G.A. § 24-3-16). Victim/witness director allowed to testify regarding conversation with victim. — In an incest and child molestation trial, there was no error in the trial court’s decision allowing the victim/witness director to testify regarding the contents of a conversation the director had with the victim. Chambers v. State, 205 Ga. App. 78, 421 S.E.2d 326, 1992 Ga. App. LEXIS 1073 (1992), overruled in part, State v. Burns, 306 Ga. 117, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (2019) (decided under former O.C.G.A. § 24-316). Witnesses’ testimony regarding statements of victim’s mother admissible. — Witnesses’ testimony that older victim said when she told her mother what defendant was doing, the mother said to pray and not tell anyone, was not beyond permissible hearsay under former O.C.G.A. § 24-3-16 because it was not offered to show the truth of matters asserted therein. Mother’s response to her daughter was not an assertion but a request, and the testimony concerning her response was presented not to prove prayer and silence on the subject of defendant’s conduct were desirable, but simply to show the mother’s request for prayer and silence was made. Gibby v. State, 213 Ga. App. 20, 443 S.E.2d 852, 1994 Ga. App. LEXIS 473 (1994), cert. denied, No. S94C1205, 1994 Ga. LEXIS 848 (Ga. July 24-8-820 7, 1994) (decided under former O.C.G.A. § 24-3-16). Mother’s and other professional witnesses’ statements admissible. — Trial court properly allowed hearsay testimony about statements made by the victim to the victim’s mother, the school counselor, and the nurse practitioner who examined the victim pursuant to former O.C.G.A. § 24-3-16 in defendant’s child molestation trial; defendant’s arguments that there was no evidence that the statements were spontaneous and that there were two inconsistencies in the victim’s statements, giving differing answers when asked how many times defendant had molested the victim and describing the incidents in a different order in two different statements, were not sufficient to show that the trial court abused the court’s discretion in admitting the statements. Flowers v. State, 255 Ga. App. 660, 566 S.E.2d 339, 2002 Ga. App. LEXIS 672 (2002) (decided under former O.C.G.A. § 24-3-16). Statements of victim’s mother held inadmissible. — In a child custody proceeding, former O.C.G.A. § 24-3-16 did not apply to allow mother to present hearsay testimony regarding harassment of her children by their stepbrother. Martin v. True, 232 Ga. App. 435, 502 S.E.2d 285 (decided under former O.C.G.A. § 24-316). Evidence inadmissible when child unavailable to testify. — Child was not available within the meaning of former O.C.G.A. § 24-3-16; therefore, the child’s mother’s testimony regarding the child’s out-of-court statements was inadmissible since the trial court excused the child without the child ever being sworn and examined as a witness because the child was distraught. Hines v. State, 248 Ga. App. 752, 548 S.E.2d 642, 2001 Ga. App. LEXIS 383 (2001) (decided under former O.C.G.A. § 24-3-16). State failed to meet the state’s burden of showing that an allegedly abused child was “available to physically appear” at the deprivation hearing as required for hearsay testimony to be admissible under former O.C.G.A. § 24-3-16. The juvenile court erred in relying on the hearsay testimony of a social worker and a DFCS case 247 Statements Admissible (Cont’d) manager regarding what the child said. In the Interest A.T., 309 Ga. App. 822, 711 S.E.2d 382, 2011 Ga. App. LEXIS 460 (2011) (decided under former O.C.G.A. § 24-3-16). Statements as to the circumstances in which appellant chased appellant’s son down the hall while carrying a maul constitutes statements regarding any act of physical abuse within the meaning of former O.C.G.A. § 24-3-16. Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558, 1995 Ga. App. LEXIS 107 (1995), rev’d, 266 Ga. 160, 465 S.E.2d 668, 1996 Ga. LEXIS 40 (1996) (decided under former O.C.G.A. § 24-3-16). Child molestation victim’s statements included in expert witness testimony are admissible. — Trial court did not err in allowing into evidence the testimony of the prosecution’s expert witness as to statements made to the witness by the child molestation victim, which statements were incriminating of defendant, since the record shows that the victim was not only available to testify in the proceedings, but was called as the prosecution’s first witness and that, prior to the admission of the expert witness’s testimony, the trial court determined that the circumstances surrounding the victim’s statements provided sufficient indicia of reliability. Knopp v. State, 190 Ga. App. 266, 378 S.E.2d 703, 1989 Ga. App. LEXIS 183 (1989) (decided under former O.C.G.A. § 24-3-16). Statements admissible when victim available. — In a prosecution for child molestation, testimony by two witnesses regarding statements made by one of the victims about seeing the defendants engaged in sex was admissible since the victim, although not called by the state, was available to be called as a witness. Grimsley v. State, 233 Ga. App. 781, 505 S.E.2d 522 (decided under former O.C.G.A. § 24-3-16). Hearsay statements of the victim were admissible because the defendant received notice of the state’s intent to use the victim’s out-of-court statements, the victim testified at trial, and the persons to whom the victim made the statements 24-8-820 were subject to cross-examination at trial. Cornell v. State, 349 Ga. App. 883, 827 S.E.2d 63, 2019 Ga. App. LEXIS 219 (2019). Statements made to government agency investigator admissible. — Trial court did not err in admitting out-ofcourt statements made by a five-year-old victim to her aunt and a Department of Family Services investigator. McCormick v. State, 228 Ga. App. 467, 491 S.E.2d 903 (decided under former O.C.G.A. § 24-316). In a proceeding to terminate the parental rights of a father who had been convicted of molesting his children, the trial court did not err in allowing a child protective services investigator, women’s shelter manager, and a therapist to testify as to statements made by the children. In re S.M.L., 228 Ga. App. 81, 491 S.E.2d 186 (decided under former O.C.G.A. § 24-316). Defendant’s claim of error in the admission of an investigator’s testimony regarding a child victim’s statements to a forensic interviewer was rejected as the investigator was behind a two-way mirror when the victim made the statements and the victim knew that the investigator was listening. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240, 2006 Ga. App. LEXIS 972 (2006) (decided under former O.C.G.A. § 24-3-16). In an action wherein two parents were found to have deprived an adopted child due to one parent’s sexual abuse of the child and the other parent’s failure to protect the child from such abuse, the juvenile court did not abuse the court’s discretion by allowing the testimony of a forensic interviewer regarding statements made by the child as the Child Hearsay Statute, former O.C.G.A. § 24-3-16, permitted such testimony, despite the parents’ challenges to the competency of the child. In the Interest of B.H., 295 Ga. App. 297, 671 S.E.2d 303, 2008 Ga. App. LEXIS 1278 (2008) (decided under former O.C.G.A. § 24-3-16). Question regarding victim’s credibility properly admitted. — Trial court properly admitted testimony from a psychologist who stated that the psychologist treated an 11-year-old girl after the 248 girl told several people that her stepfather molested her and believed that the girl had not made up her story because the testimony was offered to rehabilitate the girl’s credibility after the stepfather attacked the girl’s credibility. Horne v. State, 262 Ga. App. 604, 586 S.E.2d 13, 2003 Ga. App. LEXIS 813 (2003) (decided under former O.C.G.A. § 24-3-16). With regard to a defendant’s convictions on four counts of aggravated child molestation and three counts of child molestation, the trial court did not err by failing to hold a hearing outside of the jury’s presence with regard to the testimony of a social worker who made an audiotape of the victim’s statement, and by allowing the social worker to testify as to the general credibility assessment of the victim because the defendant failed to object at trial to the social worker’s testimony. By waiting to raise the issue on appeal, the defendant waited too late and such failure amounted to a waiver of any objection that might have been raised. Hargrove v. State, 289 Ga. App. 363, 657 S.E.2d 282, 2008 Ga. App. LEXIS 91 (2008), cert. denied, No. S08C0970, 2008 Ga. LEXIS 500 (Ga. May 19, 2008) (decided under former O.C.G.A. § 24-3-16). Spontaneous statement admissible. — When the victim, a 14-year-old, in a spontaneous, unprompted, crying event told the residential manager of the mobile home park in which the victim lived that the victim’s father was abusing the victim and later that same day the victim made substantially the same statements to a government social worker, the statements bore sufficient indicia of reliability. Smith v. State, 207 Ga. App. 55, 427 S.E.2d 48, 1993 Ga. App. LEXIS 62 (1993) (decided under former O.C.G.A. § 24-3-16). Showing of necessity to support the admission of a videotape of a police interview of the victim under former O.C.G.A. § 24-3-16 was satisfied by the fact that the victim was a witness at the trial whom the defendant was permitted to crossexamine. Knight v. State, 210 Ga. App. 228, 435 S.E.2d 682, 1993 Ga. App. LEXIS 1111 (1993) (decided under former O.C.G.A. § 24-3-16). When one of two victims was ruled incompetent to testify, but a pediatri- 24-8-820 cian’s testimony established that both girls had been sexually molested, and the other child testified that the defendant molested her and that she saw him molest her sister, the defendant’s conviction was not based on inadmissible hearsay. Mantooth v. State, 197 Ga. App. 797, 399 S.E.2d 505, 1990 Ga. App. LEXIS 1472 (1990), overruled in part, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669, 2003 Ga. LEXIS 775 (2003) (decided under former O.C.G.A. § 24-3-16). Cumulative testimony concerning victim’s statements held harmless error. — After a witness was allowed to testify as to statements which were not made directly to the witness but which the witness observed and heard by watching a monitor during the taping, the testimony was not admissible. However, the testimony was merely cumulative of other testimony presented at trial, and the error consequently presented no ground for reversal. Kelly v. State, 197 Ga. App. 811, 399 S.E.2d 568, 1990 Ga. App. LEXIS 1480 (1990) (decided under former O.C.G.A. § 24-3-16). Trial court erroneously admitted under the Child Hearsay Statute, former O.C.G.A. § 24-3-16, the foster mother’s statement that the foster mother overheard the children making remarks to one another that allegedly implicated the defendant in sexually abusing the children as the foster mother could not testify under former O.C.G.A. § 24-3-16 since the statement was not made to the foster mother; the evidence was cumulative of other evidence of abuse, however, so the error was harmless. Clemmons v. State, 282 Ga. App. 261, 638 S.E.2d 409, 2006 Ga. App. LEXIS 1364 (2006) (decided under former O.C.G.A. § 24-3-16). Habeas court properly denied the appellant relief based on ineffective assistance because the appellant did not question appellate counsel regarding that allegation and so there was no record of why appellate counsel did not pursue the specific issue at the motion for new trial stage or on direct appeal; plus, the habeas court resolved the allegation by determining the admission of the child’s videotaped forensic interview was harmless because it was cumulative of the child’s trial testimony. 249 Statements Admissible (Cont’d) Cobb v. Hart, 295 Ga. 89, 757 S.E.2d 840, 2014 Ga. LEXIS 293 (2014) (decided under former O.C.G.A. § 24-3-16). More than one statement admissible. — Trial court did not err in allowing the introduction of the victim’s prior consistent statements before the victim testified. Wooten v. State, 244 Ga. App. 101, 533 S.E.2d 441, 2000 Ga. App. LEXIS 469 (2000), rev’d, 273 Ga. 529, 543 S.E.2d 721, 2001 Ga. LEXIS 210 (2001) (decided under former O.C.G.A. § 24-3-16). Erroneous admission of the child’s statements is only reversible if it appears likely that the hearsay contributed to the guilty verdict. Estep v. State, 238 Ga. App. 170, 518 S.E.2d 176 (decided under former O.C.G.A. § 24-3-16). Judge was not required to conduct a hearing to determine whether there existed any indicia of reliability surrounding statements made by a child to a psychologist in a parental rights termination proceeding. In the Interest of D.R.C., 198 Ga. App. 348, 401 S.E.2d 754, 1991 Ga. App. LEXIS 42 (1991) (decided under former O.C.G.A. § 24-3-16). Necessary finding of admissibility implicit in judge’s ruling. — Mother’s testimony as to what the victim told her was properly admitted in evidence, even though the judge did not make a specific finding of “sufficient indicia of reliability.” Implicit in any ruling by a judge is that the judge has made the necessary finding of admissibility before admitting such evidence. Windom v. State, 187 Ga. App. 18, 369 S.E.2d 311, 1988 Ga. App. LEXIS 586 (1988) (decided under former O.C.G.A. § 24-3-16). It is implicit in the admission of statements pursuant to former O.C.G.A. § 243-16 that the trial court made the necessary finding. Calloway v. State, 202 Ga. App. 816, 415 S.E.2d 533, 1992 Ga. App. LEXIS 173 (1992) (decided under former O.C.G.A. § 24-3-16); Green v. State, 212 Ga. App. 250, 441 S.E.2d 689, 1994 Ga. App. LEXIS 175 (1994) (decided under former O.C.G.A. § 24-3-16); Roberson v. State, 214 Ga. App. 288, 447 S.E.2d 640 24-8-820 (1994) (decided under former O.C.G.A. § 24-3-16). Proffer required to appeal exclusion of testimony. — Defendant’s failure to make a proffer at trial showing that testimony should have been admitted under former O.C.G.A. § 24-9-5 precluded consideration on appeal of the issue of the exclusion of such testimony. Jones v. State, 232 Ga. App. 505, 502 S.E.2d 345 (decided under former O.C.G.A. § 24-316). Effective assistance of counsel. — Alleged failure of counsel to demand a reliability ruling for those witnesses who were called to testify about hearsay statements made by the victim did not constitute ineffective assistance since counsel did demand a reliability ruling regarding the pediatrician’s repetition of the victim’s statement, counsel filed a motion to invoke the procedures of Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987), and when the motion was heard the state indicated that the victim would testify. Also, there was a sufficient showing of indicia of reliability, within the meaning of former O.C.G.A. § 24-9-5, as to all out-of-court statements made by the victim, which were testified to by witnesses in the presence of the jury. Williamson v. State, 207 Ga. App. 565, 428 S.E.2d 628, 1993 Ga. App. LEXIS 292 (1993) (decided under former O.C.G.A. § 24-3-16). Defendant was not denied effective assistance of counsel at a trial for aggravated child molestation because it would have been futile to object to the 10-year old victim’s videotaped statement, which was admissible under the former statute’s exception for a child’s statement of sexual abuse, since there were sufficient indicia of reliability and the child was available to testify at trial. Campos v. State, 263 Ga. App. 119, 587 S.E.2d 264, 2003 Ga. App. LEXIS 1136 (2003) (decided under former O.C.G.A. § 24-3-16). Defendant did not receive ineffective assistance of counsel for counsel’s failure to object to a psychologist’s testimony that it was uncommon for a child to be able to specify incident dates if there was a recurrence of events over a prolonged period; 250 the psychologist did not improperly bolster the victim’s testimony and the psychologist’s testimony was not a comment on an ultimate issue of fact; the trial court was authorized to find that the conclusion drawn by the expert was beyond the ken of the jurors. Maddox v. State, 275 Ga. App. 869, 622 S.E.2d 80, 2005 Ga. App. LEXIS 1121 (2005) (decided under former O.C.G.A. § 24-3-16). Decision as to whether to call an expert witness concerning interviewing techniques of children in a child molestation case is one of trial strategy and in a case where trial counsel testified at the second hearing on the motion for new trial that trial counsel did not consult an expert on interviewing techniques because after reviewing the videotape, trial counsel determined that the factors outlined in case law had been met, trial counsel had filed three pretrial motions seeking to exclude or restrict child hearsay statements, and required the state to lay a proper foundation for the use of child hearsay, trial counsel’s performance was not deficient in that regard. Nichols v. State, 288 Ga. App. 118, 653 S.E.2d 300, 2007 Ga. App. LEXIS 1024 (2007) (decided under former O.C.G.A. § 24-3-16). Defendant failed to establish ineffective assistance of counsel with regard to defendant’s trial and conviction for child molestation based on trial counsel’s failure to object and conceding to the issue of reliability for the admission of the child victim’s hearsay testimony as: (1) defendant failed to point to any evidence indicating that the victim’s statements were unreliable since the statements were videotaped at a neutral location in a room alone with a professional forensic interviewer; (2) the forensic interviewer testified that the victim was very bright and articulate and did not appear to be coached; (3) the victim’s videotaped statements were spontaneous, voluntary, and not coerced; (4) the victim’s videotaped statements were consistent with other out-of-court statements; and (5) significantly, the victim’s statements were consistent with defendant’s statements to police. Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740, 2008 Ga. App. LEXIS 228 (2008), overruled in part, Hatley v. State, 290 Ga. 480, 722 S.E.2d 67, 24-8-820 2012 Ga. LEXIS 137 (2012), overruled in part as stated in Wadley v. State, 317 Ga. App. 333, 730 S.E.2d 536, 2012 Ga. App. LEXIS 658 (2012) (decided under former O.C.G.A. § 24-3-16). Although defendant’s trial counsel’s performance fell below the objective standard of reasonableness under the first prong of the Strickland ineffective assistance of counsel test, the error however was harmless because although defendant’s trial counsel performed deficiently in failing to raise a hearsay objection to admission of the victim’s statements contained in the videotaped interview, defendant did not show that trial counsel’s error prejudiced the defense since statements made by the victim during the videotaped interview were merely cumulative of testimony the victim offered at trial and for which the victim was crossexamined by trial counsel. Forde v. State, 289 Ga. App. 805, 658 S.E.2d 410, 2008 Ga. App. LEXIS 206 (2008) (decided under former O.C.G.A. § 24-3-16). Trial counsel was not ineffective in failing to ask for a hearing on the admissibility of the child molestation victim’s videotaped statement because counsel testified that counsel chose not to request a hearing under former O.C.G.A. § 24-9-5 since counsel had never seen a victim’s statement declared inadmissible, and counsel did not want the delay resulting from such a request to give the state additional time to prepare the state’s case; trial counsel is under no obligation to invoke his or her client’s legal right to a hearing designed to protect that client’s interests if the invocation of that abstract right would, in his or her professional judgment of the circumstances presented by a specific case, do actual harm to those interests. Robinson v. State, 308 Ga. App. 45, 706 S.E.2d 577, 2011 Ga. App. LEXIS 110 (2011) (decided under former O.C.G.A. § 24-316). Trial counsel was not ineffective for failing to object to the trial court’s determination that the victim was present and available to testify without further inquiring into the reliability of the victim’s outof-court statements under former O.C.G.A. § 24-3-16 because counsel did not want the statements to be excluded in 251 Statements Admissible (Cont’d) light of counsel’s trial strategy to show that the victim had been coached. Henry v. State, 316 Ga. App. 132, 729 S.E.2d 429, 2012 Ga. App. LEXIS 500 (2012) (decided under former O.C.G.A. § 24-3-16). Trial counsel was not ineffective in failing to object to the testimony of the victim’s friend to whom the victim first reported that the defendant had raped the victim, to the testimony of the legal guardian’s daughter who relayed a similar outcry, or to the testimony of the victim’s legal guardian, who described the conversation in which the victim finally disclosed the abuse, because each of the conversations transpired before the victim turned 16 years old, the statements were admissible under the Child Hearsay Statute, and any objection by counsel would not have been sustained. Brown v. State, 336 Ga. App. 428, 785 S.E.2d 84, 2016 Ga. App. LEXIS 196 (2016). Trial counsel was not ineffective for failing to object to testimony from the victim’s mother and father about the victim’s statements to them about the defendant’s actions as the Child Hearsay Statute, O.C.G.A. § 24-8-820, permitted evidence of the victim’s outcry statements and forensic interview to be admitted even though it was bolstering because the victim was younger than 16 years old when the victim made the out-of-court statements; the statements described acts of sexual contact performed on the victim or in the victim’s presence by the defendant; the state provided the defendant with notice prior to trial of the stae’s intention to use the out-of-court statements; the victim testified at trial; and the mother and father were subject to cross-examination. Jackson v. State, 344 Ga. App. 618, 810 S.E.2d 672, 2018 Ga. App. LEXIS 79 (2018). Counsel was not ineffective for failing to object to the state’s notice prior to trial that the state intended to use at trial a child’s out-of-court statement because the state’s email to defense counsel constituted proper notice as it was supplied approximately two weeks before trial, and it complied with the notice requirement in O.C.G.A. § 24-8-820. Adams v. State, 350 24-8-820 Ga. App. 340, 829 S.E.2d 412, 2019 Ga. App. LEXIS 295 (2019). Trial counsel was not ineffective for failing to object when the prosecutor asked the victim if the victim had told the truth during the victim’s forensic interview because, when a witness’s statement did not directly address the credibility of another witness, there was no improper bolstering; and the Child Hearsay Statute actually contemplated testimony from both the child and those witnessing the child’s later reaction, even if the hearsay might be bolstering. Alvarado v. State, 365 Ga. App. 305, 878 S.E.2d 266, 2022 Ga. App. LEXIS 435 (2022). Speculation does not support ineffective assistance of counsel claim. — Defendant’s ineffective assistance of counsel claim was rejected as the defendant’s claim that trial counsel was not knowledgeable about the Child Hearsay Statute, former O.C.G.A. § 24-9-5, and failed to highlight the unreliability of the child victim’s statement to a nurse was based on mere speculation that a more thorough cross-examination would have altered the outcome at trial. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240, 2006 Ga. App. LEXIS 972 (2006) (decided under former O.C.G.A. § 24-3-16). Defendant’s right to notice of statements before trial. — There was no requirement that the state provide defendant with pretrial notice of the state’s intention to introduce child hearsay statements and, when defendant was notified in advance that there was nothing exculpatory in videotaped interviews with children and defendant was allowed to view tapes during the trial, defendant’s due process rights were not violated by not being permitted to view the tapes prior to trial. Thornton v. State, 264 Ga. 563, 449 S.E.2d 98, 1994 Ga. LEXIS 863 (1994), superseded by statute as stated in Bunn v. State, 291 Ga. 183, 728 S.E.2d 569, 2012 Ga. LEXIS 565 (2012) (decided under former O.C.G.A. § 24-3-16). Evidence sufficed for aggravated child molestation conviction. — Evidence and testimony from several adults that the victim reported defendant’s sexual assault in the manner charged in the indictment was sufficient to convict for 252 aggravated child molestation, although the victim testified that the criminal act occurred while the victim was wearing jeans. McGuire v. State, 209 Ga. App. 813, 434 S.E.2d 802, 1993 Ga. App. LEXIS 1014 (1993) (decided under former O.C.G.A. § 24-3-16). Evidence was sufficient to convict defendant of child molestation, even if much of the evidence was hearsay repetition of the child’s out-of-court statements, as defendant failed to argue that the evidence did not satisfy the reliability criteria set forth in former O.C.G.A. § 24-9-5. Brown v. State, 267 Ga. App. 826, 600 S.E.2d 774, 2004 Ga. App. LEXIS 786 (2004) (decided under former O.C.G.A. § 24-3-16). There was sufficient evidence to support a defendant’s convictions for aggravated child molestation, child molestation, and false imprisonment with regard to allegations that the defendant forced a romantic friend’s minor child to perform oral sex on the defendant several times over a three year period, based on the testimony of the victim (which alone was sufficient), the videotaped forensic interview of the victim, the testimony of the police investigator and the victim’s mother concerning what the victim told them, as well as the testimony of the victim’s siblings, who were eyewitnesses to one incident. Further, the testimony of the victim that the defendant locked the victim in the house and would not let the victim leave supported the conviction on the false imprisonment charge, and 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, former O.C.G.A. § 24-9-5. Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377, 2009 Ga. App. LEXIS 431 (2009) (decided under former O.C.G.A. § 24-3-16). Failing to object to the testimony of the state’s witnesses regarding what the victim told the witnesses was not a deficiency by counsel because these statements would have been admissible under the Child Hearsay Statute, former O.C.G.A. § 24-9-5, since the victim, age ten, was a witness at trial whom the defendant cross-examined. Silcox v. State, 24-8-820 241 Ga. App. 845, 528 S.E.2d 271, 2000 Ga. App. LEXIS 47 (2000) (decided under former O.C.G.A. § 24-3-16). Parents’ testimony admissible. — When the record shows the victims testified at trial and were subject to examination and cross-examination, the trial court did not abuse the court’s discretion under the Child Hearsay Statute, former O.C.G.A. § 24-9-5, by admitting the parents’ testimony about things the victims said to the parent’s about defendant. Kight v. State, 242 Ga. App. 13, 528 S.E.2d 542, 2000 Ga. App. LEXIS 70 (2000), cert. denied, No. S00C0853, 2000 Ga. LEXIS 396 (Ga. May 5, 2000) (decided under former O.C.G.A. § 24-3-16). Statement made to therapist admissible. — Court properly admitted hearsay testimony by a child’s therapist that the defendant “put his thing” in the child’s mouth where the statement was made in a child-friendly, one-on-one therapy session, not an investigative interview, and the statement was made in response to a non-leading question. Guzman v. State, 273 Ga. App. 819, 616 S.E.2d 142, 2005 Ga. App. LEXIS 625 (2005) (decided under former O.C.G.A. § 24-3-16). Statement during medical examination admissible. — Nurse’s testimony as to a 13-year-old victim’s statements that defendant forced intercourse upon the victim made during the medical examination was properly admissible under former O.C.G.A. § 24-9-5. Bell v. State, 294 Ga. App. 779, 670 S.E.2d 476, 2008 Ga. App. LEXIS 1313 (2008) (decided under former O.C.G.A. § 24-3-16). Statements admissible. — In a child molestation case, the trial court properly allowed a deputy to read the statements of three of the teenagers involved into evidence; while all of the teenagers and their parents were present when the teenagers wrote out their statements for the deputy, the record reflected no evidence of undue pressure or influence, and the deputy was not directly involved in later videotaped interviews. Krirat v. State, 286 Ga. App. 650, 649 S.E.2d 786, 2007 Ga. App. LEXIS 778 (2007), cert. denied, No. S07C1788, 2007 Ga. LEXIS 745 (Ga. Oct. 9, 2007) (decided under former O.C.G.A. § 24-316). 253 Statements Admissible (Cont’d) After a trial court properly admitted sufficiently reliable videotaped statements made by three siblings who were the victims of a defendant’s cruelty, there was no error in also admitting testimony from nurses from the hospital where the children were taken regarding statements the children made to the nurses as the matters testified to by the nurses were the same matters detailed in the videotaped statements. Williams v. State, 293 Ga. App. 617, 668 S.E.2d 21, 2008 Ga. App. LEXIS 1025 (2008) (decided under former O.C.G.A. § 24-3-16). Under O.C.G.A. § former O.C.G.A. § 24-9-5, the trial court properly allowed a school counselor to testify about the victim’s out-of-court statements to the counselor. The victim was available to testify and did in fact testify and was thoroughly cross-examined as was the counselor; furthermore, because the statements were admissible, counsel was not ineffective for failing to object to the statements. Hilliard v. State, 298 Ga. App. 473, 680 S.E.2d 541, 2009 Ga. App. LEXIS 716 (2009) (decided under former O.C.G.A. § 24-3-16). Victim’s testimony alone was sufficient to prove defendant guilty of child molestation (O.C.G.A. § 16-6-4(a)) and aggravated child molestation (O.C.G.A. § 16-622.2(b)), pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8). The testimony of the victim’s cousin, two school friends, and the interviewing detective, was admissible as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-9-5. Vaughn v. State, 301 Ga. App. 391, 687 S.E.2d 651, 2009 Ga. App. LEXIS 1394 (2009) (decided under former O.C.G.A. § 24-3-16). There was competent evidence to support the defendant’s convictions for aggravated child molestation, O.C.G.A. § 16-64(c), and child molestation, O.C.G.A. § 16-6-4(a)(1), because the victim’s stepuncle and one of the forensic interviewers proffered evidence that the defendant sexually molested the victim pursuant to the Child Hearsay Act, former O.C.G.A. § 24-9-5; although the victim testified that the defendant touched the victim in a 24-8-820 way that the victim did not like, the victim did not provide any details about those incidents, but both the step-uncle and the forensic interviewer testified that the victim disclosed that the defendant touched the victim’s privates with the defendant’s hand and the defendant’s own privates and forced the victim to place the victim’s mouth on the defendant’s privates, and the jury resolved any credibility or inconsistency issues against the defendant. Westbrooks v. State, 309 Ga. App. 398, 710 S.E.2d 594, 2011 Ga. App. LEXIS 347 (2011) (decided under former O.C.G.A. § 24-3-16). Trial court did not abuse the court’s discretion in allowing the testimony of an investigator, a pediatrician, and a forensic interviewer regarding statements the victims made to them under former O.C.G.A. § 24-9-5, because the witnesses did not opine as to whether the victims were telling the truth but rather testified regarding the victims’ statements to them. Ledford v. State, 313 Ga. App. 389, 721 S.E.2d 585, 2011 Ga. App. LEXIS 1081 (2011) (decided under former O.C.G.A. § 24-316). Admission of testimony from the victim’s mother and a police officer as to what the victim told them about the defendant’s inappropriate contact with the victim was proper as the victim was only 10 years old, the victim testified about the abuse, and both the mother and the officer were available for cross-examination about the outof-court statements. McMurtry v. State, 338 Ga. App. 622, 791 S.E.2d 196, 2016 Ga. App. LEXIS 512 (2016), cert. denied, No. S17C0415, 2017 Ga. LEXIS 272 (Ga. Apr. 17, 2017), cert. denied, 138 S. Ct. 333, 199 L. Ed. 2d 223, 2017 U.S. LEXIS 6149 (2017). Trial court did not err in allowing testimony of the victim’s aunt, the victim’s mother, and the investigating detective regarding statements the victim made to them regarding the defendant’s abuse as such evidence was admissible under the Child Hearsay Statute (see now O.C.G.A. § 24-8-820). Laster v. State, 340 Ga. App. 96, 796 S.E.2d 484, 2017 Ga. App. LEXIS 17 (2017) (decided under former O.C.G.A. § 24-3-16). Plain error doctrine inapplicable. — Plain error doctrine had been limited to capital cases and to criminal cases in 254 which the trial judge allegedly intimated an opinion of the defendant’s guilt in violation of O.C.G.A. § 17-8-57 and had no application to a defendant’s claims that a child molestation victim’s hearsay statements served to bolster the victim’s credibility and lacked sufficient indicia of reliability. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240, 2006 Ga. App. LEXIS 972 (2006) (decided under former O.C.G.A. § 24-3-16). Harmless error. — If the trial court erroneously allowed under former O.C.G.A. § 24-9-5 the testimony of the psychologist in the child molestation case, any error was harmless; although the defendant argued that the testimony was the only evidence of the defendant’s mental state, there was ample evidence that the defendant had the propensity to molest children, including the victim’s detailed statements, the corroborating medical examination, and the testimony of the children’s parent that the defendant had molested the children’s parent when the children’s parent was very young. Clemmons v. State, 282 Ga. App. 261, 638 S.E.2d 409, 2006 Ga. App. LEXIS 1364 (2006) (decided under former O.C.G.A. § 24-3-16). With regard to a defendant’s convictions for child molestation and related crimes arising from actions the defendant took toward three children and those that the defendant forced the children to engage in by gunpoint while the defendant was a babysitter for the children, although the testimony of the mother of one of the victims that the victim was forced to have sex with the defendant was double hearsay and inadmissible, the error was not reversible since other legally admissible evidence of the same fact was introduced, therefore, the error was harmless. Sullivan v. State, 295 Ga. App. 145, 671 S.E.2d 180, 2008 Ga. App. LEXIS 1259 (2008), cert. denied, No. S09C0624, 2009 Ga. LEXIS 215 (Ga. Apr. 20, 2009) (decided under former O.C.G.A. § 24-3-16). In a rape and child molestation case, the trial court did not err in admitting the victim’s hearsay statements as the victim appeared at trial, took the witness stand, and was available for cross-examination; and there was no requirement that the 24-8-820 child victim testify as to the defendant’s specific actions or the specific contents of the victim’s interview video, let alone that the state successfully elicited such testimony on direct examination. Alvarado v. State, 365 Ga. App. 305, 878 S.E.2d 266, 2022 Ga. App. LEXIS 435 (2022). Jury Issues and Instructions Evidence was sufficient for the jury to find a defendant guilty of child molestation beyond a reasonable doubt as it was within the jury’s province to reject the defendant’s defense denying the crime with regard to the victim as well as with regard to the witnesses who testified as to similar transactions with the defendant. The testimony of the victim was corroborated by an investigator and a forensic interviewer, who testified as to what the victim had told had occurred; the victim’s statements were corroborated by the sheriff’s investigator; and the jury was entitled to consider the victim’s out-ofcourt statements as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-3-16. Lamb v. State, 293 Ga. App. 65, 666 S.E.2d 462, 2008 Ga. App. LEXIS 900 (2008) (decided under former O.C.G.A. § 24-3-16). Trial court did not err in denying the defendant’s motion for new trial pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 because the jury was authorized to conclude that the defendant was guilty of child molestation in violation of O.C.G.A. § 16-64(a)(1); under the Child Hearsay Statute, former O.C.G.A. § 24-3-16, the jury was entitled to consider the victim’s out-ofcourt statements as substantive evidence, and the victim was made available at trial for confrontation and cross-examination, at which time the jury was allowed to judge the credibility of the victim’s accusations. Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485, 2011 Ga. App. LEXIS 857 (2011), overruled in part, Martin v. McLaughlin, 298 Ga. 44, 779 S.E.2d 294, 2015 Ga. LEXIS 793 (2015) (decided under former O.C.G.A. § 24-3-16). Evidence that a defendant became highly intoxicated while having visitation with his seven-year-old daughter, that he licked her vagina, kissed her with his tongue in her mouth, and made her rub 255 Jury Issues and Instructions (Cont’d) her hand on his penis was sufficient to support convictions for aggravated child molestation in violation of O.C.G.A. § 166-4(c). A jury could infer from the evidence that the defendant’s intent was to arouse and satisfy his sexual desires pursuant to O.C.G.A. § 16-2-6. Obeginski v. State, 313 Ga. App. 567, 722 S.E.2d 162, 2012 Ga. App. LEXIS 22 (2012), cert. denied, No. S12C0908, 2012 Ga. LEXIS 1013 (Ga. Oct. 1, 2012) (decided under former O.C.G.A. § 24-3-16). Credibility of witness within jury’s purview. — Despite defendant’s argument that expert testimony showed it as 24-8-821 likely that statements of defendant’s grandson to the lead detective regarding defendant’s sexual molestation of the grandson were coached, those were deemed admissible pursuant to the Child Hearsay Statute, former O.C.G.A. § 24-316, in that they were statements by a child available to testify in the proceedings that described abuse of a child under 14 which provided sufficient indicia of reliability; determinations as to the credibility of a witness were a matter solely within the jury’s purview and would not be disturbed on appeal. Wright v. State, 259 Ga. App. 74, 576 S.E.2d 64, 2003 Ga. App. LEXIS 2 (2003) (decided under former O.C.G.A. § 24-3-16).