White v. State, A89A1289

• Decision Date: 07 November 1989
• Docket Number: No. A89A1289,A89A1289
• Parties: WHITE v. The STATE.
• Court: Georgia Court of Appeals

Page 921

387 S.E.2d 921

193 Ga.App. 428

WHITE v. The STATE.

No. A89A1289.

Court of Appeals of Georgia.

Nov. 7, 1989.

Robert H. Reeves, Americus, for appellant.

John R. Parks, Dist. Atty., Barbara A. BeCraft, Asst. Dist. Atty., for appellee.

POPE, Judge.

Defendant Johnny F. White was tried and convicted by a jury of two counts of aggravated child molestation in Lee County, Georgia. He appeals from the trial court's denial of his motion for new trial. We affirm.

1. Defendant contends that the State failed to prove venue as to both counts. Count one of the indictment concerned an incident that allegedly occurred on April 7, 1988, when the defendant, against medical advice, removed the victim, his eight-year-old daughter, from Southwest Regional Hospital, where she had been placed because of severe behavioral problems. According to the statement of the defendant, which was entered into evidence at trial, and the videotaped testimony of the victim, the defendant and the victim were travelling from the hospital in Thomas County, Georgia, to their home in Lee County, when the defendant left the main road and went behind a barn where he instructed the victim to undress. Defendant stated that he fondled the victim while masturbating. The victim told hospital workers that the defendant fondled her and placed his mouth on her genitals while masturbating. Neither the victim nor the defendant could identify which county they were in when these acts took place.

In general, criminal actions shall be tried in the county where the crime was committed. OCGA § 17-2-2(a). However, "[i]f a crime is committed upon any ... vehicle ... within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the ... vehicle ... has traveled." Here the evidence shows that the defendant traveled with the victim from Thomas County, where the hospital was located, to Lee County where the defendant lived with the victim and her siblings. Consequently, the evidence of venue as to count one was sufficient. See Polk v. State, 142 Ga.App. 785(2), 236 S.E.2d 926 (1977).

The second count of the indictment concerned acts of molestation which allegedly occurred between January and April of 1988, after defendant moved from Cussetta, Georgia, in Chattahoochee County to Lee County. Defendant admitted to molesting his daughter on three occasions while the family was residing in Cussetta. The victim told workers at the hospital that the molestation had been occurring for approximately two years, and that the father had attempted penetration when they were living in Cussetta, but since that time the acts had consisted of fondling and oral sodomy. Evidence was also presented that the victim had a history of behavior problems and that these problems were most severe when the victim was living with her father and less severe when she was living with her grandmother. A social worker testified that the victim's behavioral problems had increased in severity after the victim had moved back in with her father while he was living in Lee County. Testimony was also presented that the victim's behavior problems and test results were consistent with a child who had been sexually abused. "Circumstantial, as well as direct evidence, may be used to establish venue. Loftin v. State, 230 Ga. 92, 94(2) (195 SE2d 402) (1973). Where there is no conflicting evidence, slight evidence is sufficient. Aldridge v. State, 236 Ga. 773, 774(1) (225 SE2d 421) (1976). Since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it. [Cits.]" Taylor v. State, 176 Ga.App. 567(1)(a), 336 S.E.2d 832 (1985). See also Woodruff v. State, 191 Ga.App. 338, 381 S.E.2d 582 (1989).

2. Defendant also contends that he was rendered ineffective assistance of counsel at trial. Specifically, defendant argues that trial counsel was unprepared, that he failed to conduct a thorough cross-examination of the State's witnesses, that he failed to put the defendant on the stand, that he failed to call certain witnesses who would have given testimony beneficial to the defendant, and that he failed to pursue vigorously certain challenges to the evidence and motions made on the defendant's behalf.

Pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), defendant must meet two tests in order to prevail on his ineffective assistance of counsel claim: "1) he must show that trial counsel's performance was deficient in that he made errors so serious that he was not functioning as the 'counsel' guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. [Cit.]" Hosch v. State, 185 Ga.App. 71, 72, 363 S.E.2d 258 (1987). As to the first prong, the Supreme Court has approved the "reasonably effective assistance" standard adopted in Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974). "Thus '(t)he reasonableness of counsel's performance is then considered in light of the totality of the circumstances, viewed from counsel's perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. (Cit.) The defendant must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct.' Brogdon [v. State, 255 Ga. 64, 68, 335 S.E.2d 383 (1985) ]. As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. [Cit.]" Thompson v. State, 188 Ga.App. 508, 509, 373 S.E.2d 292 (1988). " 'Regarding the second prong of the test, the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's unprofessional errors.' [Cits.]" Gainer v. State, 188 Ga.App. 314, 315, 372 S.E.2d 848 (1988).

Our review of the trial transcript reveals that in the instant case defense counsel was, contrary to defendant's assertions, versed in both the law and the facts of the case, that he conducted a thorough cross-examination of the State's witnesses, that he made a pre-trial motion in limine and that he moved for a directed verdict at the close of the case. Although counsel did not place the defendant on the stand or present any witnesses in his behalf, the record discloses that counsel attempted, through his cross-examination of other witnesses, to show both that the defendant's statement was involuntarily given and that the statements made by the victim should not be believed.

"Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant's original representation was inadequate. [Cits.] Even if trial counsel's strategy was flawed, it was not sufficient to render his representation ineffective under the [standard enunciated above.]" Hosch, supra 185 Ga.App....