author: Barnes, Presiding Judge.

text:
    A12A2394.
    BRYANT v. THE STATE.
    (740 SE2d 247)
   Barnes, Presiding Judge.

Following a jury trial, Dwayne Bryant was convicted of trafficking in cocaine and possession of a firearm during the commission of a felony. He filed a motion for new trial which the trial court denied, and he now appeals from that order. On appeal, Bryant contends that the trial court abused its discretion by dismissing a juror after “significant deliberations” had occurred. Following our review, and upon finding that the trial court did not abuse its discretion in removing an ill juror, we affirm his convictions.

The record reflects that at the close of evidence in Bryant’s trial on Thursday, January 10, 2008, the jury deliberated for a short time before adjourning for the day. The jury deliberated for a full day on Friday, January 11, after which at approximately 6:10 p. m. it inquired to the trial court via note as to “what the next step is if we cannot reach a decision.” The trial court brought the jury in and inquired if additional deliberation would help, and the foreperson responded in the affirmative, after which the jury returned to the jury room. While the jury was out, Bryant requested a mistrial on the basis that by allowing the jury to continue deliberating, a juror or jurors would be more inclined to “give up their position and to compromise to the extent that they would give up what they are holding out [for].” The trial court denied the motion. At 6:25 p.m., the jury notified the trial court that it would like to continue deliberating for another hour “then decide whether to continue this evening or on Monday,” to which the trial court responded by writing “fine” on the note. At 7:08 p.m. the jury sent in a note informing the trial court that for “charges 1 and 2 we are unable to reach a decision. We are able to reach a decision on charge 3. No amount of further deliberation would change this decision.” The trial court called the jury in and gave them an Allen charge, after which the jury continued deliberation. Bryant renewed his motion for retrial, and also objected to the Allen charge. The trial court denied his motion and overruled the objection. At 8:00 p.m. the trial court received a note from the jury that they wished to “reconvene Monday at 9:00 a.m.” The trial court called the jury in and after inquiring as to whether any of the jurors had issues related to reconvening on Monday, excused the jury.

At 9:45 a.m. Monday morning, the trial court reconvened and notified the parties that earlier that morning, the court had received a call from juror 12 that she was at the emergency room at South Fulton Medical Center. The trial court related that it had verified, as best it could under the Heath Insurance Portability and Accountability Act (“HIPAA”) laws, that the juror was at the hospital, and provided the parties with a note signed by a registered nurse at the hospital that “[juror 12] is a patient at South Fulton Medical Center.” The trial court informed the parties that it would allow the jury to continue deliberations with the alternate juror. Bryant objected and again moved for a mistrial, asserting that continued deliberations after not being able to reach a consensus were putting “undue pressure” on the jury to reach a verdict. Bryant also requested that the judge recess the jury until it could determine when juror 12 would return. The trial court again indicated that HIPAAlaws restricted the medical information it could acquire from the hospital, and that from juror 12’s conversation with the court’s judicial assistant, “[the juror] had the ñu and was ... in a bad way.”

The trial court denied Bryant’s motions, called the jury in, apprised them of the juror’s illness, and informed the alternate that she would be seated as a member of the jury for continued deliberations. The jury reached a unanimous verdict later that morning.

1. Bryant contends that the trial court abused its discretion and infringed on his right to a fair trial and to be present by dismissing the juror after “significant deliberations” had begun. He contends that the trial court made its decision to replace the juror without a hearing or inquiry or the presence of the State or Bryant. We do not agree. OCGA § 15-12-172 provides:

If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated. . . .

As this Court has explained:

The controlling law has established a procedure for addressing the question of removal of a juror for cause: The trial court must exercise its discretion in removing a juror, and it may effect such a removal even after deliberations have begun. There must be some sound basis upon which the trial judge exercises his discretion to remove the juror. A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion.

(Citation and punctuation omitted.) Semega v. State, 302 Ga. App. 879 (691 SE2d 923) (2010).

Here, the trial court did not merely rely upon the juror’s own claim of illness, but made an independent inquiry into the circumstances and then reported its finding to Bryant and the State. It allowed both sides input before it determined that the juror would be replaced with the alternate. This case differs significantly from Scott v. State, 219 Ga. App. 798, 800 (2) (466 SE2d 678) (1996), relied upon by Bryant. In that case, we granted Scott a new trial because the trial court “replaced the sick juror with the alternate, without consulting the State or Scott. The court did not make its own independent determination that the juror was in fact ill and could not complete deliberations, which it should have done.”

We reached a different conclusion in Cleveland v. State, 218 Ga. App. 661, 663-664(4) (463 SE2d36) (1995). In that case, after the jury was unable to reach a verdict and was given an Allen charge, one of the jurors informed the trial court that he was concerned about a possibly cancerous growth on his ear and that an operation was scheduled that day to remove the growth. The trial court dismissed the juror and replaced him with the alternate over the defendants’ objections that “the system was being manipulated to avoid [a] deadlock.” Id. at 664 (4). When the foreman informed the trial court that the jury was close to a verdict, the trial court considered calling the excused juror’s doctor to inform him that the juror would be late, but upon considering “the legal ramifications of returning a juror after announcing he was excused,” decided to replace the juror. Id. We found that the trial court did not abuse its discretion under OCGA § 15-12-172, because

[although the court may not have excused [the juror] had it first inquired and discovered that a verdict might be reachable without jeopardizing the scheduled surgery, it was not an abuse to do so. Hurrying to a verdict because of anxiety about keeping an important medical appointment relating to the juror’s own health could itself infect the verdict.

Cleveland, 218 Ga. App. at 664 (4).

The present case is more similar to Cleveland than Scott. In this case, the trial court conducted an independent investigation into the juror’s illness and “developed some factual support for its decision to remove the [juror] for a legally relevant reason.” State v. Arnold, 280 Ga. 487, 489 (629 SE2d 807) (2006). The trial court did not abuse its discretion in determining that delaying the deliberations or awaiting the return of a sick juror could have a prejudicial effect on the outcome.

[OCGA § 15-12-172] implicitly authorizes the trial court to exercise its discretion. But it must be an informed exercise, since the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law.

Decided March 19, 2013.

Adam M. Hames, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Herring v. State, 224 Ga. App. 809, 811 (1) (481 SE2d 842) (1997). Here, the record shows that the trial court made an informed exercise of its discretion, and we discern no abuse of that discretion in dismissing the juror in these circumstances.

2. The Supreme Court of Georgia has held that a trial court commits error when it communicates with a jury in the absence of the defendant or his counsel because “a defendant on trial must be present when the court takes any action materially affecting his case.” (Citations omitted.) Burtts v. State, 269 Ga. 402, 403 (3) (499 SE2d 326) (1998). Although Bryant appears to also contend that he was absent from the deliberations when the juror was dismissed and replaced with an alternate, the record reflects that Bryant’s attorney participated in the discussion. While the record does not reflect whether Bryant himself was either absent or present,

the absence of this information . . . does not prove [Bryant] was not in the courtroom at the time discussions were had about the [ill] juror. We must apply the presumption of regularity and conclude that the trial court conducted the trial properly by making sure appellant was present when necessary.

Milinavicius v. State, 290 Ga. 374, 377 (3) (721 SE2d 843) (2012). Judgment affirmed. McFadden and McMillian, JJ., concur.

       “The evidence will not he summarized because the general grounds were not argued.” Tanner v. State, 242 Ga. 437 (249 SE2d 238) (1978).

       See Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

       During the proceedings, the alternate juror asked about his role during the extended deliberations, and the trial court informed him that “it’s the Court’s practice to select an alternate, so if somebody were unable to continue to deliberate for a legal cause, we would then at that point in time — I would instruct all of you as to what. . . steps we would need to take at that point.”


source: Caselaw Access Project

author: Boggs, Judge. ANDREWS,

license: Public Domain

text:
    A12A2413.
    NORRED v. TEAVER et al.
    (740 SE2d 251)
   Boggs, Judge.

The sole issue in this case is whether OCGA § 9-3-72, which provides for a one-year statute of limitation for foreign objects “left in a patient’s body”, applies to only those foreign objects left in the body unintentionally. We hold that it does not, and we overrule our prior precedent limiting the application of the statute.

The underlying facts here are undisputed. In 2005, when Angela Norred chipped a molar, she saw Dr. Steven Teaver, who referred her for a root canal. Following the root canal, Norred returned to see Dr. Teaver who averred that he inserted a cotton pellet and then a temporary crown on Norred’s tooth. Dr. Teaver admitted that on March 1, 2006, he placed a permanent crown over Norred’s tooth (leaving the cotton pellet in place). Norred’s tooth became sensitive late in 2006. She began seeing a new dentist in 2008, and on February 10, 2010, during a routine cleaning, Norred’s crown installed by Dr. Teaver came off, revealing the cotton pellet and releasing a noxious odor due to extensive infection.

Norred filed suit against Dr. Teaver and his professional corporation (collectively “Teaver”) on February 4, 2011, alleging that Dr. Teaver was negligent and caused her injury. Norred’s expert averred that Norred’s injury was caused by Dr. Teaver’s failure to ensure that the cotton pellet “in the subject molar was removed before . . . placement of the permanent crown.” The expert stated further that the cotton pellet “is a foreign material that is not intended to remain in a molar after placement of a permanent crown,” and that Dr. Teaver’s failure to remove the material “deviated and fell below the required standard of care.”

After the parties engaged in some discovery, Teaver moved for summary judgment on the ground that Norred’s claim was filed outside of the general limitation period of OCGA § 9-3-71 (a). Teaver also asserted that OCGA § 9-3-72, the exception to the general limitation period where a foreign object is left in the body, did not apply because the cotton pellet was not a foreign object as contemplated by that Code section since Teaver intentionally left the cotton pellet in Norred’s tooth. Teaver submitted the affidavit of an expert who averred that Dr. Teaver’s decision to leave the cotton pellet in place complied with the standard of care.

The trial court granted Teaver’s motion for summary judgment finding that because Teaver “intentionally placed a new cotton pellet in [Norred’s] tooth based on his professional judgment,” the pellet “is not classified as a foreign object.” The court concluded that the general statute of limitation for medical malpractice therefore applied, OCGA § 9-3-71 (a), and because Norred filed her complaint outside of the two-year limitation period, her action was barred.

1. Norred contends that the trial court erred in holding that OCGA § 9-3-72 does not apply to her action based upon its conclusion that the cotton pellet was not a “foreign object.” That Code section provides:

The limitations of Code Section 9-3-71 [the general limitation for medical malpractice actions] shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purposes of this Code section, the term “foreign object” shall not include a chemical compound, fixation device, or prosthetic aid or device.

Teaver, citing the authority relied upon by the trial court, Pogue v. Goodman, 282 Ga. App. 385 (638 SE2d 824) (2006) and Shannon v. Thornton, 155 Ga. App. 670 (272 SE2d 535) (1980), argues that the foreign object statute of limitation does not apply because Dr. Teaver intentionally left the cotton pellet in Norred’s tooth and “foreign object” includes only those objects that are inadvertently left in a patient’s body. In Pogue, supra, a physician implanted a catheter in a patient to distribute pain medication. 282 Ga. App. at 385. The patient filed suit against the physician less than a year after a test revealed that the tip of the catheter reached into the patient’s cranial cavity. Id. This court held that because the physician intentionally placed the catheter in the patient’s body for the purpose of relieving her pain, it was not a “foreign object,” and the patient’s claim therefore falls under the general limitation period for medical malpractice actions rather than the limitation period for foreign objects left in the body. Id. at 388 (1). Relying on Shannon, we concluded: “We have interpreted the term ‘foreign object’to include only those objects that are inadvertently left within a patient’s body. Where an object is purposely placed in a body, it cannot be said to have been ‘left,’ which, in the context of the statute, connotes a non-purposeful act.” (Punctuation omitted.) Pogue, supra, citing Shannon, supra.

Similar to our holdings in Pogue and Shannon, in Whiddon v. Spivey, 194 Ga. App. 587 (391 SE2d 421) (1990), aff’d on other grounds, 260 Ga. 502 (397 SE2d 117) (1990), we concluded that when a washer and screw were inserted in a patient’s bone, and the physician removed the screw but intentionally left the washer in place, the washer was not a foreign obj ect because the physician made a “conscious decision in the exercise of his professional judgment to leave the washer in plaintiff’s leg.” Whiddon, supra, 194 Ga. App. at 589.

Whiddon relied on this court’s opinion in Ivey v. Scoggins, 163 Ga. App. 741 (295 SE2d 164) (1982). In Ivey, a suture was left in a patient’s kidney, and we held that because there was no evidence presented “that the presence of the suture is the result of proper medical procedure, the suture is a foreign object under [OCGA § 9-3-72].” Id. at 742-743 (2). Whiddon also relied on the Supreme Court of Georgia’s decision in Dalbey v. Banks, 245 Ga. 162 (264 SE2d 4) (1980). But Dalbey is distinguishable both factually and legally. The Supreme Court reversed this court’s holding in Banks v. Dalbey, 150 Ga. App. 779 (258 SE2d 701) (1979), where we held that particles of ceramic glass left in a cut on the patient’s hand after a physician attempted to remove the glass were foreign objects. Dalbey, supra, 245 Ga. at 163-164. The Supreme Court held that the physician’s failure to remove all of the particles of ceramic glass which were not placed there by him was “more akin to the ordinary mis-diagnosis and mis-treatment cases.” Id. at 164. While the Dalbey court concluded that OCGA § 9-3-72 did not apply because the physician did not place the foreign object in the patient’s hand to begin with, the court stated further in dicta:

Where a physician places a foreign object in his patient’s body during treatment, he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. The purpose of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiffs claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing. In such situations the danger of belated, false or frivolous claims is eliminated. The foreign object in the patient’s body is directly traceable to the doctor’s malfeasance.

(Emphasis supplied.) Id. at 163-164.

While our prior precedent has consistently held that a foreign object left in the body for purposes of OCGA § 9-3-72 applies only to those foreign objects left unintentionally, we now hold that such an interpretation of this Code section was incorrect and contrary to the plain language of the statute. It is well settled that “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” (Citations and punctuation omitted.) Six Flags Over Georgian, L.P. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003). OCGA § 9-3-72 provides a one-year limitation period following the discovery of “a foreign object” that is “left” in a patient’s body. The term “left” is past tense and past participle of the verb “leave” which is defined as “to cause or allow to remain.” Webster’s Unabridged Dictionary (2nd ed. 1983), pp. 1034, 1032. And “foreign” is defined as “not originating in the person or thing specified.” Id. at p. 717. It follows then, that under the plain language of OCGA § 9-3-72, the limitation period begins to run upon the discovery of an object not originating in the person’s body that is caused or allowed to remain in the body. It is immaterial under the plain meaning of this language whether the object is caused to remain intentionally or unintentionally.

Moreover, “[o]ur well established rules of statutory interpretation require courts to ascertain the legislature’s intent in enacting the law in question. OCGA § 1-3-1 (a).” Inagawa v. Fayette County, 291 Ga. 715, 717 (1) (732 SE2d 421) (2012). “As long as the (statutory) language is clear and does not lead to an unreasonable or absurd result, ‘it is the sole evidence of the ultimate legislative intent.’ ” (Citations and punctuation omitted.) Lumpkin County v. Georgia Insurers Insolvency Pool, 292 Ga. 76, 78 (2) (734 SE2d 880) (2012). In enacting OCGA § 9-3-72, the legislature created a limitation period based upon the discovery of a foreign object left in the body. The logic of this exception to the general limitation period is self-evident: because an object left in the body is internal and cannot be seen, a patient may be unaware of the negligent or wrongful act or omission, and likewise unaware that the object has caused injury, until well after the general limitation period of OCGA § 9-3-71 has expired. As the Supreme Court explained in Spivey, supra, the “mischief” corrected by the enactment of OCGA § 9-3-72 “was the injustice of a claim being barred before its existence became known to the injured party.” (Citation omitted.) 260 Ga. at 504.

The plain language of OCGA § 9-3-72 provides that the general statute of limitation for medical malpractice claims does not apply where a foreign object is left in a patient’s body, but that such an action shall be brought within one year after the negligent or wrongful act is discovered. There is no language in this Code section limiting its application to only those foreign objects left inadvertently. And, as argued by Norred, such an interpretation of the statute would allow a defendant-doctor to unilaterally bar a plaintiff’s claim (that has already fallen outside of the general limitation period) merely by asserting that he left the foreign object in the patient’s body intentionally, no matter how absurd the assertion.

Therefore, based upon the plain language and the legislative intent of OCGA § 9-3-72, we overrule both Shannon and Pogue, as they improperly limit its application. And we disapprove of our prior cases that relied upon dicta in Dalbey, supra, to the extent those cases could be interpreted to hold that the foreign object statute of limitation applies to only those foreign objects left in the body unintentionally.

There is no dispute that the cotton pellet is a “foreign” object under the ordinary meaning of the term. Norred’s complaint, filed within one year of the discovery of the cotton pellet left in her tooth, was within the limitation period set forth in OCGA § 9-3-72. The trial court therefore erred in granting Teaver’s motion for summary judgment.

2. In light of our holding in Division 1, Norred’s argument that the trial court erred “by not having a jury determine the veracity of [Dr. Teaver’s] testimony that he, on occasion, permanently leaves in cotton fabric inside a patient’s molars,” is rendered moot.

Judgment reversed.

Ellington, C. J., Barnes, P. J., Miller, P. J., Phipps, P. J., Doyle, P. J., Dillard, McFadden, Ray and Branch, JJ., concur. Andrews, P. J., and McMillian, J., concur specially.

ANDREWS,

Presiding Judge, concurring specially.

I concur specially because although I disagree that the cases interpreting OCGA § 9-3-72 should be overruled, I agree that the trial court erred in granting summary judgment to Dr. Teaver.

“The doctrine of stare decisis is usually interpreted to mean that the court should adhere to what it has previously decided and not disturb what is settled.” Baker v. C & S Nat. Bank, 240 Ga. 549, 550 (242 SE2d 39) (1978).

Even those who regard “stare decisis” with something less than enthusiasm recognize that the principle has even greater weight where [, as here,] the precedent relates to interpretation of a statute. A reinterpretation of a statute after the General Assembly’s implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function.

Abernathy v. City of Albany, 269 Ga. 88, 90 (495 SE2d 13) (1998). Thus, without a strong reason to set aside a long-standing interpretation, we should not do so in the face of legislative acquiescence. State v. Jackson, 287 Ga. 646 (697 SE2d 757) (2010), quoting Etkind v. Suarez, 271 Ga. 352, 358 (5) (519 SE2d 210) (1999).

In this case, there is no strong reason to set aside this longstanding interpretation of OCGA § 9-3-72. Although the majority posits the scenario that a doctor could simply state that he left the object in the body intentionally and defeat the application of OCGA § 9-3-72, no matter how absurd the assertion, that has not happened to date and is not present in the case before us. Dr. Teaver and his assistant both stated that it was his practice, in certain cases, to leave a cotton pellet in the tooth to mark the canal in the event that it became necessary to place a post in the tooth. Dr. Teaver has submitted the affidavit of another dentist stating that it is not unusual to leave the cotton pellet in the tooth when placing the crown on the tooth. Angela Norred’s expert testified by way of affidavit that he had never seen, heard, or read about cotton fabric being placed inside a tooth on a permanent basis and therefore doubted the veracity of Dr. Teaver’s testimony that he intentionally left the cotton pellet permanently inside Norred’s tooth. If a jury were to determine that Dr. Teaver did intentionally place the cotton pellet in Norred’s tooth, then, under long-standing case law, the statute of limitation would bar Norred’s claim.

Decided March 19, 2013.

Moreover, the interpretation of the statute in Shannon v. Thornton, 155 Ga. App. 670 (272 SE2d 535) (1980), is not strained or labored and makes perfect sense. The court pointed out that the one-year statute of limitation applied “only where a foreign object has been left in the patient’s body.” (Punctuation omitted; emphasis in original.) The court reasoned that “[w]here, as here, an object is purposely placed in a body it cannot be said to have been ‘left,’ which, in the context of the statute, connotes a non-purposeful act.” Id.

Further, our Supreme Court in Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 304 (2) (368 SE2d 490) (1988) (overruled on other grounds, Spivey v. Whiddon, 260 Ga. 502 (397 SE2d 117) (1990)), has approved this interpretation. The Court held that “a bulldog clamp unintentionally left in the body following surgery is a ‘foreign object,’ ” (emphasis supplied) and cited Shannon v. Thornton, as authority. Thus, the Supreme Court has cited with approval and quoted the very language that we are overruling. I believe therefore, that we lack the authority to overrule that holding.

Thus, this interpretation of the statute has been in place for many years and there has been no change in the wording by the legislature nor has our Supreme Court issued any decisions that would seem to disapprove of this interpretation of the statute. See, e.g., Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring dubitante). Changing our interpretation of the statute after all this time creates a lack of public confidence in the precedents established by this Court. See Etkind v. Suarez, 271 Ga. at 358.

Therefore, for all the reasons stated above, I believe the majority has not shown that there is a strong reason for overruling cases that were correctly decided. The bench and bar are entitled to rely on long-standing case law and this is not a situation in which the doctor’s contention is so unbelievable we must overrule cases in order to avoid allowing an “absurd assertion.” Nor is there any possibility of this occurring in the future because it will be for a jury to decide any issue of fact as to whether a doctor’s assertion that the foreign object was intentionally left in the body is credible.

I am authorized to state that Judge McMillian joins in this opinion.

Katz, Stepp, Wright & Fleming, Robert U. Wright, for appellant.

Tisinger Vance, Richard G. Tisinger, Jr., for appellees.

       Dr. Teaver asserted:
      It is normal procedure for me to intentionally place a new cotton pellet underneath a crown if I believe there is a possibility the patient will need a post installed in the tooth at some later date. The purpose of this procedure is to facilitate locating the proper canal for later placement of the post, if it becomes necessary to place a post in the tooth .... I believed there was a possibility that Ms. Norred would need to have a post placed in the tooth at some time in the future. In accordance with my common practice, I intentionally placed a new, small cotton pellet under the crown on February 14,2006 to help locate the proper canal if it became necessary to install a post in the tooth at a later date.

       This conclusion was not necessary to our analysis in Shannon, because in that case, we held that the plaintiff’s dental bridge was a “fixation device or prosthetic aid or device” specifically excluded from consideration as a “foreign object,” and that the plaintiff’s claim was barred in any case by both the general malpractice statute of limitation and the statute of limitation for foreign objects left in the body. Id. at 670.

        In Allrid v. Emory Univ., 249 Ga. 35, 38 (1) (d) (285 SE2d 521) (1982), the Supreme Court made a passing reference to this statement as a holding. But a passing reference such as this should not he used to elevate dicta into binding legal precedent.

       We note that in Spivey, supra, the Supreme Court of Georgia, in affirming this court on other grounds, declined to rule on whether this court correctly decided that the washer was not a foreign object. 260 Ga. at 504, n. 1.

       As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) (531 SE2d 722) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 (183 SE2d 605) (1971).”

       See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 (361 SE2d 514) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) (318 SE2d 790) (1984).


author: MILLER, Presiding Judge.

text:
    A12A2566.
    CHANDLER v. THE STATE.
    (740 SE2d 256)
   MILLER, Presiding Judge.

Following a jury trial, Darius Chandler was convicted of burglary (OCGA § 16-7-1 (b)) and giving a false name to officers (OCGA § 16-10-25). Chandler filed a motion for new trial, which the trial court denied. On appeal, Chandler contends that his counsel was ineffective in failing to request a jury charge on fingerprint evidence, inspect and copy the fingerprint material, and object to the improper testimony that went to the ultimate issue of guilt. Finding no error, we affirm.

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 do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Fogerty v. State, 304 Ga. App. 546 (1) (696 SE2d 496) (2010).

So viewed, the evidence shows that in June 2011, the victim’s neighbor observed two African-American males sitting on the steps of the victim’s house in Clayton County. The victim was not home at the time. The neighbor then witnessed the two males go to the back of the victim’s house. Approximately fifteen minutes later, the neighbor saw the two males exit the victim’s house carrying two red duffle bags, a large flat-screen television, and a shotgun. The male carrying the television proceeded through the back yard before the witness lost sight of him. The male carrying the duffle bags entered a nearby residence, and the neighbor later saw him emerge empty handed. The neighbor then called the police, and the responding officers arrived within ten minutes.

Upon arriving at the scene, the responding officers obtained from the neighbor a description of the activity and the males. After the officers were unable to locate the two males, the officers searched and processed the area. The officers gained entrance to the residence where the neighbor watched one male take the duffle bags. At this residence, the officers found one red duffle bag containing numerous electronics that the victim later identified as having been taken from his home. The victim’s large flat-screen television was found in the back yard of a house on the same side of the street as the victim’s house. The victim’s rifle was located inside a nearby dumpster.

The officers lifted two latent fingerprints from the television frame. A crime scene investigator testified that the fingerprints were extremely good, and that based on her comparison, she concluded that the prints matched Chandler’s.

Based on this information, a police detective contacted Chandler. Chandler denied being in Clayton County during the time of the offense and claimed that it was impossible for his prints to be on the television. When the detective asked to meet Chandler, Chandler refused, stating that he was not planning on returning to Clayton County in the near future. The detective then applied for and obtained a warrant for Chandler’s arrest.

One week after the detective spoke with Chandler, police officers observed Chandler in Clayton County when he was walking in the middle of a roadway and obstructing traffic. The officers made contact with Chandler and asked Chandler for identification. Chandler stated that he had no identification on his person, but stated that his name was “William” Chandler. The officer did not find any active warrants for William Chandler, and as a result, the officer advised Chandler that he was free to leave. Later that day, the officer reviewed a photograph of the suspect wanted for burglary and determined that the individual he encountered earlier in the day was Darius, not William, Chandler. The officer returned to the area where Chandler was last seen and arrested Chandler for providing a false name to police officers and for burglary.

After being advised of his Miranda rights, Chandler agreed to be interviewed by police officers. During his interview, Chandler admitted that his fingerprints were on the television, but claimed that he had been contacted by two males who were committing a burglary. According to Chandler, he drove to the area where the burglary occurred to examine the stolen television that the males offered to sell him. Chandler claimed that he declined to purchase the television because it would not fit in his vehicle. Although the two males allegedly called Chandler, he was unable to provide the police with contact information for these men. Chandler was also unable to explain how he could drive to the area of the burglary, inspect the television, and depart the area within the ten minutes it took for police officers to respond to the scene. Following a jury trial, Chandler was convicted of burglary and giving a false name. This appeal ensued.

Chandler contends that his trial counsel was ineffective in several respects.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 [104 SC 2052, 80 LE2d 674] (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). Applying these standards, we turn to address Chandler’s claims.

(a) Chandler contends that his trial counsel was ineffective by failing to request the pattern jury charge on fingerprint evidence, which reads as follows:

Certain evidence of fingerprint comparison has been admitted by the court for your possible consideration.
Identification by fingerprint comparison is opinion evidence and is dependent upon the credibility (or believability) and accuracy of the expert witness(es) called for that purpose as well as the following factors:
a) the validity of the theory of identification by fingerprint comparison,
b) the credibility of the witness who performs other necessary functions in making the comparison such as inked finger impressions and latent lifts, and
c) the accuracy of procedures in identifying, preserving, recording, and maintaining integrity of the physical evidence, all of which are questions for the jury.
Fingerprint evidence is also governed by the rules on circumstantial evidence.
If you believe that fingerprints corresponding to those of the accused were found and identified, their evidentiary value, if any, would be diminished to the extent that they could reasonably have been left (at the scene) (on the article(s) alleged) at a time or under circumstances that would be consistent with innocence.
A verdict of guilty may not rest upon fingerprint identification alone, unless you are satisfied beyond a reasonable doubt that fingerprints left by the accused were in fact found and that they could only have been impressed by the accused (at the scene of the crime) (on the weapon, etc.) at the time of the commission of the crime and that such identification under all of the facts and circumstances of the case is sufficient to satisfy your mind of the guilt of the accused to the exclusion of any other reasonable theory and beyond a reasonable doubt.

See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.35.20 (3rd ed. 2005).

“[CJounsel’s decision as to which requests to charge to pursue in light of the defense theory is a strategic one. As a general rule, matters of tactics and strategy, whether wise or unwise, [do] not amount to ineffective assistance of counsel.” (Citations and punctuation omitted.) Newton v. State, 303 Ga. App. 852, 854 (2) (a) (695 SE2d 79) (2010). Additionally,

[i]f a defendant bases his ineffectiveness claim on trial counsel’s failure to request a charge on a certain defense, it is irrelevant whether the trial court would have been required to give such a charge absent a request. Rather, the appropriate inquiry is whether trial counsel provided deficient representation in failing to request the charge, and if so, whether the defendant can meet the prejudice prong of Strickland v. Washington. In making the latter determination, the relevant inquiry is whether the charge, if it had been requested, was warranted by the evidence, and if it had been given, whether there is a reasonable probability that it would have changed the outcome of the trial.

(Punctuation and footnotes omitted.) Lewis v. State, 302 Ga. App. 506, 509 (c) (691 SE2d 336) (2010).

At the hearing on Chandler’s motion for new trial, trial counsel testified that he deliberately chose not to request a jury charge on fingerprint evidence because the evidence was consistent with Chandler’s defense, which Chandler helped formulate. Specifically, trial counsel testified that the location of the fingerprints supported Chandler’s defense that he was a potential purchaser of a television that two burglars offered to sell him, and that he touched the television while inspecting it. Trial counsel also testified that the fingerprints’ location was inconsistent with the State’s theory that Chandler left the fingerprint while carrying the television during the burglary. Trial counsel explained that he believed it was better to address the fingerprint evidence through argument rather than requesting a jury charge that could have undermined the credibility of his defense since it would have suggested that the fingerprints were not Chandler’s. While the requested charge may have benefitted Chandler’s defense, “[t]his Court will not, with benefit of hindsight, second-guess defense trial strategies .... Absent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” (Citation and punctuation omitted.) Raymond v. State, 298 Ga. App. 549, 550-551 (1) (a) (680 SE2d 598) (2009). In light of trial counsel’s testimony, Chandler has failed to show that trial counsel’s decision not to request the fingerprint charge was patently unreasonable.

Even if trial counsel erred by not requesting the fingerprint charge, Chandler has failed to demonstrate prejudice. Chandler argues that without the fingerprint evidence charge, the jury did not consider the factors relating to the accuracy of the procedures used to evaluate the fingerprints. As noted by trial counsel, however, there was no need to challenge the accuracy of the fingerprint evidence since Chandler admitted to police officers that the fingerprints were bis. Moreover, the trial court charged the jury on the presumption of innocence, reasonable doubt, burden of proof, and circumstantial evidence, including that to authorize a conviction based on circumstantial evidence, such evidence must exclude every reasonable theory other than the guilt of the accused. Thus, the jury was fairly informed that they could not convict Chandler unless the circumstantial evidence, including the fingerprint evidence, was sufficient to exclude every reasonable hypothesis save that of guilt. Under the circumstances, we cannot conclude that there was a reasonable probability that the jury would have reached a different result if the charge on fingerprint evidence had been given. See Lott v. State, 281 Ga. App. 373, 376 (4) (636 SE2d 102) (2006) (no prejudice from trial counsel’s failure to request charge on forcible felonies that might have authorized the defendant’s use of deadly force, because the trial court gave other instructions that informed the jury as to when a homicide is justified); see also Springs v. Seese, 274 Ga. 659, 662 (3) (558 SE2d 710) (2002) (no reasonable probability that the outcome of the case would have been different had trial counsel requested a jury charge on identity where the jury was charged on presumption of innocence, burden of proof, and reasonable doubt and instructed on the general principles of law underlying a defense of misidentification).

(b) Chandler also contends that trial counsel was ineffective in failing to inspect and copy discoverable fingerprint material. Again, we disagree.

As discussed above, trial counsel testified that he and Chandler formulated the defense that he innocently touched the television when he inspected it for purchase. Since Chandler admitted to police officers that the fingerprints were his, he cannot show that trial counsel’s examination of the fingerprint evidence would have changed the outcome of the trial. To the extent Chandler argues that an independent expert should have been consulted,

no expert testified at the motion for new trial hearing. Without this testimony, we cannot evaluate whether there is a reasonable probability that the outcome of the proceeding might have been different. Therefore, [Chandler] has failed to meet his burden to show ineffective assistance of counsel on this basis.

(Punctuation and footnote omitted.) Thornton v. State, 305 Ga. App. 692, 694 (1) (a) (700 SE2d 669) (2010).

(c) Chandler next contends that trial counsel was ineffective for failing to object to the testimony of the investigating officer and the victim that Chandler asserts went to the ultimate issue of his guilt and invaded the province of the jury. We disagree.

(i) Chandler asserts that it was improper for the victim to testify that Chandler did not have permission to have any of his property or to enter his residence. “A witness generally is not permitted to express his or her opinion regarding an ultimate issue in the case because to do so would invade the fact-finding province of the jury [.]” (Citations and punctuation omitted.) Medlock v. State, 263 Ga. 246, 248 (3) (430 SE2d 754) (1993). In this case, however, the victim indicated that he did not know Chandler, and that he did not give Chandler permission to enter his residence or have his property. “The [victim] did not testify that he thought [Chandler] had committed a burglary, and therefore did not testify as to the ultimate issue.” (Citations and punctuation omitted.) Escoe v. State, 306 Ga. App. 321, 323 (2) (702 SE2d 652) (2010). Therefore, trial counsel’s failure to make a meritless objection to the victim’s testimony does not constitute ineffective assistance. See Walley v. State, 298 Ga. App. 483, 486 (3) (680 SE2d 550) (2009).

Decided March 19, 2013.

Quentasha L. Banks, for appellant.

Tracy Graham-Lawson, District Attorney, Luana N. Popescu, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

(ii) Chandler also asserts that the investigating officer impermissibly testified about the ultimate issue of fact as to whether Chandler was one of the two perpetrators involved in the burglary. Chandler takes issue with the following exchange:

State: [T]o your knowledge how many perpetrators were there in [the burglary]?
Officer: I was informed by the witnesses and the original police report that there were two individuals involved. That’s what both the witnesses said they saw two people.
State: Were you ever able to find out who the other individual was?
Officer: No[.]

Contrary to Chandler’s claims, the officer’s testimony that he did not identify or apprehend the second individual involved in the burglary did not go to the ultimate issue of whether Chandler committed the burglary. The officer expressed no opinion as to whether he thought Chandler committed a burglary, and therefore he did not testify as to the ultimate issue. See Escoe, supra, 306 Ga. App. at 323 (2). Therefore, trial counsel’s failure to make a meritless objection to the officer’s testimony does not constitute ineffective assistance. See Walley, supra, 298 Ga. App. at 486 (3).

Accordingly, the trial court did not err in finding that none of the foregoing grounds constituted ineffective assistance of counsel.

Judgment affirmed.

Ray and Branch, JJ., concur.

       At trial, the State introduced similar transaction evidence showing that Chandler committed a burglary in 2010.


author: BARNES, Presiding Judge.

text:
    A12A2134.
    ALFORD v. THE STATE.
    (738 SE2d 124)
   BARNES, Presiding Judge.

Based upon allegations that he sexually abused his girlfriend’s two daughters, Jorris Nemoy Alford was tried before a jury and convicted of one count of child molestation and two counts of sexual battery against a child under the age of 16. Alford moved for a new trial, contending that he received ineffective assistance from his trial counsel. The trial court denied his motion following an evidentiary hearing. On appeal, Alford contends (1) that the trial court erred in overruling his objection to testimony elicited from one of his girlfriend’s daughters which he contends was hearsay, irrelevant, and improper bolstering, and (2) that his trial counsel was ineffective for failing to object to improper bolstering testimony elicited from a school teacher. For the reasons discussed below, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence showed that Alford started dating his girlfriend in the 1990s when her daughters, E. S. and I. S., were in elementary school. Alford subsequently moved in with his girlfriend and her family in their apartment in Clayton County.

In 2003, Alford began sexually abusing E. S. She was in the seventh grade and 12 years old. Alford would touch her buttocks, touch and suck on her breasts, and touch her vagina over and under her clothes when her mother and other family members were away from the apartment or in another room. Alford sexually abused E. S. three or four times a week until she and her sister first reported the abuse to school officials in February 2009, when E. S. was a high school senior and 17 years old.

E. S. was approximately two years older than her sister I. S. In 2005, when I. S. was in the sixth grade and 11 or 12 years old, Alford began sexually abusing her as well. Alford would touch I. S. on her buttocks, touch and suck on her breasts, and touch her vagina when no one else was around in the apartment. As with E. S., Alford sexually abused I. S. “[a]bout every other day or so” until the girls made their initial outcry to school officials in February 2009, when I. S. was in tenth grade and about to turn 16 years old.

Up to February 2009, E. S. and I. S. had kept the abuse a secret. E. S. had felt ashamed and scared, had not known what to do, and had “just want[ed] to forget everything and look past it.” She also knew that her mother loved Alford, and she did not want to hurt her mom emotionally by telling her that Alford was abusing her. I. S. likewise did not want to upset her mother and told no one of the abuse for a long time, except in a note she wrote to her sister approximately six months to a year before the girls made their initial outcry to school officials. Upon reading the note, E. S. felt that she had failed in protecting her sister and chose not to resist Alford’s sexual advances in hopes that he would leave I. S. alone.

Despite having reservations about disclosing the abuse, I. S. broke down crying in front of her tenth grade teacher in February 2009 and repeatedly told her, “I can’t take it anymore.” I. S.’s teacher took her to the school counselor’s office, where I. S. disclosed that Alford was sexually abusing her. When E. S. learned that I. S. was meeting with the counselor, she came into the counseling session and disclosed that she too was being sexually abused by Alford. E. S. and I. S. thereafter provided written statements to the police and spoke with a forensic interviewer.

Alford was arrested and indicted for multiple felony offenses arising out of the sexual abuse allegations. At the ensuing jury trial, E. S. and I. S. testified to the events as discussed above. E. S. was 19 years old at the time of trial, and I. S. was 17 years old. I. S.’s tenth grade teacher and the school counselor also testified. Additionally, the police detective assigned to the case testified about her investigation into the sexual abuse allegations.

Alford chose to testify in his own defense. He denied having sexually abused the girls and accused them of fabricating the allegations. He suggested that the girls had decided to make up the abuse allegations when their mother changed the family dynamic after he had lived at the apartment for several years by placing him in charge of their discipline, because up to that point “they were used to their mom doing all the disciplining.” He also suggested that the girls made up the abuse allegations “because they didn’t like the idea that their mom had someone else instead of their father.”

After hearing all of the testimony, the jury convicted Alford of one count of child molestation for the sexual abuse of I. S. and two counts of sexual battery against a child under the age of 16 for the sexual abuse of each girl. The trial court merged the count for the sexual battery of I. S. into the child molestation count and sentenced Alford to twenty-five years, with five years to serve in confinement and the remainder probated. Alford then filed a motion for new trial alleging that his trial counsel had rendered ineffective assistance. Following an evidentiary hearing, the trial court denied Alford’s motion, resulting in this appeal.

1. Although not enumerated as error, we conclude that the evidence was sufficient for a rational jury to find Alford guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “Questions concerning the weight of the evidence and credibility of the witnesses were for the jury to decide.” Johnson v. State, 289 Ga. App. 206, 208 (656 SE2d 861) (2008).

2. Alford maintains that the trial court erred in overruling his hearsay, relevancy, and bolstering objections to testimony elicited from E. S. by the State about hér reaction to the note written to her by I. S. We disagree.

During her direct examination, the State asked E. S. whether, before they made their outcry to school officials in February 2009, there had ever been a time when she and I. S. had discussed Alford’s molestation of I. S. The State made clear in asking the question that E. S. was not to disclose the specifics of what had been said during any discussion that had occurred. E. S. responded, “Only once,” and then went on to describe an incident at night when I. S. was crying and upset, came into her bedroom, and showed her a sheet of paper on which I. S. had written “he molested me.” Defense counsel objected to E. S.’s testimony about the content of the note on hearsay grounds, and the trial court sustained the objection and struck the testimony after the State agreed it was hearsay.

The State then asked E. S. about her reaction to the note written by I. S., and E. S. responded that she felt that she had “failed as an older sibling.” Defense counsel objected to the testimony about E. S.’s reaction to the note on the grounds that the State was trying to bypass the trial court’s previous hearsay ruling. According to defense counsel, E. S.’s testimony about her reaction to her sister’s note was inadmissible hearsay that improperly bolstered the veracity of I. S. The State responded that E. S.’s reaction to the note was admissible to explain her conduct, leading defense counsel to argue that the reasons for her conduct were not relevant under the circumstances of this case. The trial court overruled defense counsel’s hearsay, relevancy, and bolstering objections. E. S. then proceeded to testify that in reaction to the note, she cried until she fell asleep and allowed Alford to “go ahead” and touch her when he made sexual advances “cause [she] thought that maybe he would leave [I. S.] alone.”

“As a general rule, the admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” Maddox v. State, 278 Ga. App. 191 (2) (628 SE2d 625) (2006). We conclude that the trial court acted within its discretion in overruling defense counsel’s hearsay, relevancy, and bolstering objections to E. S.’s testimony about her reaction to the note from I. S. In explaining why the trial court committed no error, we will address the three objections each in turn.

(a) Hearsay. First, the trial court acted within its discretion in overruling defense counsel’s hearsay objection to E. S.’s testimony about her reaction to the note because the actual contents of the note had already been stricken from the record. Given that the actual substance of the note had been excluded from evidence, no hearsay was before the jury for its consideration. See Page v. State, 256 Ga. 191, 192 (5) (345 SE2d 600) (1986) (no hearsay elicited from witness where objection sustained and contents of conversation excluded from jury’s consideration, and witness then went on to testify “that she had a conversation and that as a result of that conversation she made a determination regarding her future course of conduct”). See generally Johnson v. State, 289 Ga. 22, 26 (4) (709 SE2d 217) (2011) (noting that rule against hearsay “generally prevents witnesses from testifying as to statements made by third parties,” and concluding that investigator’s testimony, which did not disclose any “statement” made by tipster to him, was not hearsay) (emphasis supplied); Henley v. State, 285 Ga. 500, 507 (5) (678 SE2d 884) (2009) (investigator’s testimony was not hearsay because it “did not relay information told to him by other persons”).

Furthermore, even if E. S.’s testimony about her reaction to I. S.’s note could be construed as indirectly or implicitly disclosing the contents of the note, the testimony was not hearsay because the content was admissible under former OCGA § 24-3-2. That statute provides: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.”

In Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982), the Supreme Court of Georgia stated a rule for applying OCGA § 24-3-2; if the conduct and motives of the actor are relevant to the issues on trial, then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor’s conduct.

(Citation and punctuation omitted.) Davenport v. State, 278 Ga. App. 16, 23 (2) (c) (628 SE2d 120) (2006), disapproved in part on other grounds, Schofield v. Holsey, 281 Ga. 809, 811-812 (II), n. 1 (642 SE2d 56) (2007).

E. S. explained that in response to the note from I. S., she cried herself to sleep and felt guilty for failing to protect her sister, which led to her decision not to resist further sexual abuse from Alford in hopes that he would no longer abuse I. S. Her reaction to the note helped explain why she acquiesced to the continued sexual abuse by Alford and waited so long to make an outcry to a third party, issues that were relevant under the particular circumstances of this case in light of the defense’s theory that the allegations of abuse were fabricated. See Pruitt v. State, 274 Ga. 708, 710 (2) (a) (559 SE2d 470) (2002) (testimony explaining why there was a long delay by a witness in reporting the crime was relevant to the jury’s evaluation of the witness’s credibility, where defense alleged that witness had fabricated the allegations). See generally Hicks v. State, 196 Ga. App. 311, 312 (1) (396 SE2d 60) (1990) (trial court acted within its discretion in admitting testimony “relevant to the issue of why a child might delay reporting incidents of molestation”).

For this reason, to the extent that E. S.’s testimony about her reaction could be construed as indirectly or implicitly disclosing the contents of I. S.’s note, her testimony was admissible to explain her conduct pursuant to former OCGA § 24-3-2 and thus did not violate the rule against hearsay. See Pruitt, 274 Ga. at 710-711 (2) (b) (testimony explaining reason for long delay in reporting crime properly admitted under former OCGA § 24-3-2). See also Potts v. State, 259 Ga. 96, 103 (16) (376 SE2d 851) (1989) (citing to former OCGA § 24-3-2 and holding that trial court did not err in admitting testimony explaining why victim waited so long to escape from defendant).

(b) Relevancy. Second, the trial court acted within its discretion in overruling defense counsel’s relevancy objection to E. S.’s testimony about her reaction to I. S.’s note. As explained in Division 2 (a), E. S.’s testimony regarding her reaction was relevant to help explain why she acquiesced to the continued sexual abuse and her long delay in making an outcry to a third party.

(c) Bolstering. Third and finally, the trial court acted within its discretion in overruling defense counsel’s objection that E. S.’s testimony about her reaction to the note improperly bolstered I. S.’s credibility. “It is.well established that credibility of a witness is a matter for the jury, and a witness’s credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” (Punctuation and footnote omitted.) Strickland v. State, 311 Ga. App. 400, 403 (2) (a) (715 SE2d 798) (2011). But where, as here, testimony is admissible for the purpose of showing the effect on the victim or to explain the victim’s conduct, the testimony does not constitute improper bolstering. See Painter v. State, 219 Ga. App. 290, 296 (7) (465 SE2d 290) (1995).

3. Alford contends that the trial court erred in denying his motion for a new trial because his trial counsel was ineffective for failing to object to the improper bolstering testimony of I. S.’s tenth grade teacher. Because Alford cannot show prejudice resulting from trial counsel’s failure to object, we conclude that he cannot succeed on his ineffective assistance claim.

In order to succeed on his claim of ineffective assistance, [Alford] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If [Alford] fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Lynch v. State, 291 Ga. 555, 556 (2) (731 SE2d 672) (2012). Guided by these principles, we turn to the record here.

During her direct examination, the State asked I. S.’s tenth grade teacher to describe I. S.’s demeanor when she was speaking with the teacher and the school counselor in February 2009. The teacher answered that I. S. “was crying very hard” but then went on to testify, unresponsively, that I. S. finally told them the “truth” about what had happened. Trial counsel did not object to the teacher’s testimony on bolstering grounds. At the hearing on Alford’s motion for a new trial, counsel explained that his failure to object was not a matter of trial strategy but was an oversight.

Alford contends that the teacher’s unresponsive remark about I. S. telling “the truth” constituted improper bolstering of I. S.’s veracity and that his trial counsel was ineffective for failing to object to the testimony and have it stricken. We agree that the teacher’s remark was improper and that the failure to object to the testimony or request that it be stricken constituted deficient performance. However, the teacher’s remark was not so significant that there was a reasonable probability that the outcome at trial would have been different if counsel had objected or moved to strike. The improper testimony consisted of a single, unresponsive remark during the course of a trial with several witnesses. Moreover, I. S.’s account of the sexual abuse remained consistent, and Alford had a full opportunity to test her credibility during cross-examination. Additionally, E. S. testified to similar incidents of sexual abuse.

Under these circumstances, Alford cannot establish prejudice resulting from the teacher’s remark. See Strickland, 311 Ga. App. at 404 (2) (a) (no prejudice resulted from failure to object to bolstering testimony in child molestation case, where victim’s testimony remained consistent, the defendant had a full opportunity to cross-examine the victim, and there was testimony regarding similar instances of abuse to other victims); Anderson v. State, 282 Ga. App. 58, 63 (3) (a) (637 SE2d 790) (2006), disapproved in part on other grounds, Schofield, 281 Ga. at 811-812 (II), n. 1 (no prejudice resulted from failure to obj ect to bolstering testimony in child molestation case, where offending testimony consisted of a single response during “a day-long trial with multiple witnesses,” and where victim’s testimony remained consistent and defendant had a full opportunity to cross-examine the victim). Compare Gaston v. State, 317 Ga. App. 645, 649 (1) (731 SE2d 79) (2012) (admission of bolstering testimony was prejudicial, where, among other things, victim’s “various accounts contained inconsistencies”); Mann v. State, 252 Ga. App. 70, 73-74 (1) (555 SE2d 527) (2001) (failure to object to bolstering testimony was prejudicial, where the only evidence of the molestation arose out of statements made by the victim, and the victim gave materially different accounts of what had occurred). It follows that the trial court did not err in denying Alford’s motion for new trial.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

Decided February 5, 2013

Reconsideration denied march 20, 2013.

Frances C. Kuo, for appellant.

Tracy Graham-Lawson, District Attorney, Caroline C. Owings, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

       The trial court directed a verdict of not guilty as to two counts of child molestation, attempted aggravated sexual battery, and aggravated child molestation because the indictment inexplicably failed to name Alford as the person who committed those offenses. The jury acquitted Alford of child molestation and sodomy counts in which E. S. was the alleged victim.

       The State did not attempt to have the contents of the note admitted under the Child Hearsay Statute, OCGA § 24-3-16, apparently agreeing with the defense that I. S. was not under the age of 14 when she wrote the note. See generally Foster v. State, 216 Ga. App. 26, 28 (2) (453 SE2d 482) (1994) (Child Hearsay Statute limited to statements made hy a child under the chronological age of 14 at the time of the alleged act).

       Testimony that is not hearsay on its face nevertheless can constitute inadmissible hearsay under certain circumstances. See generally Felder v. State, 270 Ga. 641, 645 (8) (514 SE2d 416) (1999) (officer’s testimony that defendant’s mother threw murder weapon into river was “apparent” hearsay because officer was not personally present when mother discarded the weapon). See also Paul S. Milich, Georgia Rules of Evidence § 16:6, pp. 530-535 (2011-2012 ed.).

       As of January 1, 2013, OCGA § 24-3-2 was repealed when the new Evidence Code became effective.