                                    FIFTH DIVISION
                                   MCFADDEN, P. J.,
                                 RAY and RICKMAN, JJ.

                       NOTICE: Motions for reconsideration must be
                       physically received in our clerk’s office within ten
                       days of the date of decision to be deemed timely filed.
                                   http://www.gaappeals.us/rules


                                                                          June 7, 2018




In the Court of Appeals of Georgia
 A18A0279. WILLIAMS v. THE STATE.

         RAY, Judge.

         A jury convicted Kenneth Williams of two counts of child molestation (OCGA

§ 16-6-4 (a)) and one count of aggravated sexual battery (OCGA § 16-6-22.2). He

filed the instant appeal from the denial of his motions for new trial. For the reasons

that follow, we affirm Williams’ convictions for child molestation. We are

constrained by a 2017 decision of the Georgia Supreme Court to reverse his

conviction for aggravated sexual battery and remand the case for a new trial on that

issue.

         On appeal from a criminal conviction, the defendant no longer enjoys a

presumption of innocence, and we view the evidence in the light most favorable to

the jury’s verdict. We neither weigh the evidence nor judge the credibility of the
witnesses, but determine only whether the jury was authorized by the evidence to find

the defendant guilty of the crimes charged. Laster v. State, 340 Ga. App. 96, 97 (796

SE2d 484) (2017).

      The evidence adduced at trial showed that in 2013, E. H., who was four years

old at the time and staying at her grandmother and Williams’ house, contacted her

mother via FaceTime, crying and asking to come home. Williams was E. H.’s step-

grandfather. In the car on the way home, E. H. told her mother that she had a “secret”

with Williams, whom she called “Poppy.” E. H. said that Williams had been touching

her privates. At trial, E. H. responded affirmatively when asked if Williams touched

her “in” her privates, but also testified that he only touched her on the outside of her

privates and that her panties were “up” when he touched her. Specifically, E. H. told

her mother, “Poppy touches my hoo-hoo and I touch his wee-wee.” These were words

that E. H.’s family used, respectively, to refer to the vagina and the penis. E. H. later

made a consistent report about the touching to her father, and was upset and crying

when she did so. E. H.’s behavior was matter-of-fact and normal when she relayed

this information to her mother. The mother said E. H. was “adamant” that the

touching had happened. At some point in 2013, E. H. told her mother that Williams

“had put his finger inside her vagina.”

                                           2
      After E. H. made outcry to her mother, Williams told his wife, E. H.’s

grandmother, about a number of incidents occurring between September 2012 and

July 2013 in which E. H. approached him, squeezed his penis or testicles, sometimes

punched his testicles, and took his finger to touch her vagina. The grandmother

testified that Williams demonstrated for her how he touched E. H. at the top of her

vagina, on the outside, and agreed that it was “undisputed” that this had happened.

The grandmother testified that Williams never said specifically that he did not put his

finger inside E. H.’s vagina. The grandmother took notes on these incidents in an e-

mail that she eventually sent to E. H.’s mother and from which she was questioned

at trial. When asked if E. H. “would touch his penis and he would touch her vagina,”

the grandmother said Williams had told her that it did not happen on each visit, but

“[i]f it happened, it only happened once” each time E. H. visited.

      Jill Hesterlee, a registered nurse and forensic interviewer, interviewed E. H. in

August 2013 at the Carroll County Child Advocacy Center. It was a recorded video

interview, which was tendered into evidence and played for the jury. During the

interview, Hesterlee showed E. H. drawings of male and female subjects, and had her

identify various body parts. E. H., pointing at the genitals on the drawings, said that

“Poppy” (Williams) touched her and she touched him, more than once, in places that

                                          3
were not okay, but that “he said it was okay” and “we don’t want grammy to see

because it was just our secret.” E. H. also told Hesterlee that she and Williams pulled

their pants and underwear down, and that he touched her vagina “with his fingers.”

When Hesterlee asked E. H. whether Williams touched her “hoo-hoo” (vagina) on the

outside or the inside, E. H. responded, “both” and “both, sometimes.” Asked what this

felt like, E. H. responded, “It tickles a little bit and it feels so good . . . it feels good

in and out.” E. H. said she did not want Williams to stop. Hesterlee then asked, “So

he does his finger in and out?” E. H. nodded affirmatively.

       E. H. told a counselor, whom she was seeing at the time of trial, that she felt

bad for not telling Williams “no” when he touched her, that she wanted the touching

to stop, and that she did not feel comfortable.

       1. Williams contends that the evidence is insufficient to sustain his conviction

for aggravated sexual battery1 because no rational trier of fact could have found the

element of penetration beyond a reasonable doubt. He argues that E. H.’s testimony

was inconsistent, and that her statements in a forensic interview “were not very clear”

and were “the product of suggestive questioning.”


       1
        Williams does not contest the sufficiency of the evidence as to his convictions
for child molestation.

                                             4
      “A person commits the offense of aggravated sexual battery when he or she

intentionally penetrates with a foreign object the sexual organ or anus of another

person without the consent of that person.” OCGA § 16-6-22.2 (b). The Code section

defines “foreign object” as “any article or instrument other than the sexual organ of

a person.” OCGA § 16-6-22.2 (a). A finger is considered a foreign object under

OCGA § 16-6-22.2 (a). Hardeman v. State, 247 Ga. App. 503, 504 (2) (544 SE2d

481) (2001).

      Although E. H. gave some conflicting testimony, there was some evidence, as

outlined above, that Williams’ finger went into E. H.’s vagina. See Kirkland v. State,

334 Ga. App. 26, 27-28, 33 (3) (778 SE2d 42) (evidence sufficient to sustain

defendant’s conviction for aggravated sodomy where relatives of child victim

testified that child told them defendant made her engage in oral sex, but victim, who

was four years old when testifying at trial, only nodded affirmatively to related

questions, said she forgot, or refused to answer). There also was evidence that E. H.

did not consent, in that she told one of her counselors that she did not want Williams

to touch her and wanted him to stop.2 Any issues of inconsistency or credibility of

testimony are for the jury, not this Court, and the jury was authorized by the evidence

      2
          The issue of “consent” is more fully discusssed in division 2 herein.

                                           5
to conclude that aggravated sexual battery occurred. Pearce v. State, 300 Ga. App.

777, 779-780 (1) (686 SE2d 392) (2009).

      2. Williams argues that the trial court erred by instructing the jury, in regard to

the aggravated sexual battery count, that a child under the age of 16 lacks the legal

capacity to consent to any sexual act. This instruction, Williams contends, relieved

the State of its burden to prove that the crime was committed without the child’s

consent.

      The trial court charged the jury that, “[a] person commits the offense of

aggravate[d] sexual battery when one intentionally penetrates with a foreign object

the sexual organ of another person without the consent of that person.” See OCGA

§ 16-6-22.2 (b). The trial court immediately added, “As I previously charged, a child

under the age of 16 cannot legally consent to any sexual act.”

      As Williams concedes, “[a]lthough the charge was a correct statement of the

law at the time it was given, following the trial, the Supreme Court of Georgia held

that the crime of sexual battery requires actual proof of the victim’s lack of consent,

regardless of the victim’s age.” (Punctuation omitted.) Laster, supra at 100 (2), citing

Watson v. State, 297 Ga. 718, 720-721 (2) (777 SE2d 677) (2015). In Duncan v.

State, 342 Ga. App. 530, 540-541 (6) (804 SE2d 156) (2017), which also involved a

                                           6
case in the appellate pipeline when Watson was decided, this Court found that the

State also must prove a victim’s lack of consent in cases of aggravated sexual battery.

      Williams argues, for the first time on appeal, that the instant case was not yet

final and, thus, was in the appellate “pipeline” at the time Watson was decided.3

Harris v. State, 273 Ga. 608, 610 (2) (543 SE2d 716) (2001) (applying new rule of

criminal procedure regarding jury instructions to “all cases in the ‘pipeline’ – i.e.,

cases which are pending on direct review or not yet final”) (citations omitted). Thus,

“the Watson holding governs our analysis. We therefore must determine whether the

charge was harmless, i.e., whether it is highly probable that the erroneous charge did

not contribute to the jury’s verdict.” (Citation and footnote omitted.) Duncan, supra

at 541 (6). Although the State argues that plain error review applies in the instant

case, that question was settled to the contrary in Duncan. Id. at 541 (6), n. 18.4

      3
        See Freeman v. State, 269 Ga. 337, 339 (1) (C) (496 SE2d 716) (1998)
(defining the appellate pipeline as including cases poised “between conviction and
direct appeal”).
      4
           In Duncan, as in the instant case, the defendant did not raise a
contemporaneous objection to the jury charge at trial. See Duncan v. State, Case No.
A17A1224, appellant’s brief at p. 40. The State cites to three cases in arguing that
plain error review applies here because Williams did not object to the jury instruction
at trial. Those cases involved counsel’s reservation of the right to raise objections to
the jury charge on appeal. Brockman v. State, 292 Ga. 707, 730 (17) (739 SE2d 332)
(2013), Lewis v. State, 291 Ga. 273, 278 (4), n. 5 (731 SE2d 51) (2012), and Taylor

                                           7
      “Because the erroneous jury instruction here effectively relieved the State of

its burden to prove an essential element of the crime of aggravated sexual battery, the

instruction cannot be said to have been harmless. Accordingly, [Williams’]

conviction[] for aggravated sexual battery must be reversed.” (Citations and

punctuation omitted.) Duncan, supra at 541 (6).

      3. Williams argues that he received ineffective assistance of counsel in several

respects.

      A criminal defendant asserting an ineffective assistance of counsel claim is




v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992). However, the trials in all three
cases took place prior to 2007. See Brockman, supra 707, n. 1; Lewis, supra at 273,
n. 1; and Taylor, supra at 584, n. 1. Effective July 1, 2007, OCGA § 17-8-58, as
amended, provided that the failure to raise a specific objection to jury instructions
precludes appellate review except in cases of plain error. Obviously, if a jury
instruction is correct when given, a defendant cannot raise a valid, specific,
contemporaneous objection to it “before the jury retires to deliberate.” OCGA § 17-8-
58 (a). Thus, the rationale in Duncan applies to the instant case. We note that the
instant case involves a substantive change in the law, see Luke v. Battle, 275 Ga. 370,
370 (565 SE2d 816) (2002) (finding, in the appellate pipeline context, that a
substantive, as opposed to procedural, change in the law occurs when a change in
criminal law “place[s] certain conduct beyond the reach of the [applicable criminal
statute] that before that decision could have led to criminal liability”). Taylor, supra
at 586 (3), which the State cites, is distinguishable as it provides that new rules of
criminal procedure are applied to pending cases “depend[ing] on the preservation of
the issue for appellate review[.]”

                                           8
      required to show both that his counsel’s performance was professionally
      deficient and that but for counsel’s unprofessional conduct, there is a
      reasonable probability the outcome of the proceedings would have been
      different. . . . The likelihood of a different result must be substantial, not
      just conceivable. On appellate review, 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.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d

225) (2012).

      (a) Williams contends that he received ineffective assistance because his trial

counsel failed to properly request a jury instruction on the definition of excusable

ignorance as it pertained to his involuntary intoxication defense. Williams contended

at trial that he was not responsible for his actions because he was taking a prescription

medication called Lisinopril. Specifically, he argues that his trial counsel should have

requested that the trial court charge on the definition of “excusable ignorance.”

      Trial counsel filed a written request for the pattern charge on involuntary

intoxication, which the trial court gave as follows:

      A person shall not be found guilty of a crime when at the time of the
      conduct constituting the crime the person does not have sufficient
      mental capacity to distinguish between right and wrong in relation to the
      criminal act because of involuntary intoxication. Involuntary

                                            9
      intoxication means intoxication caused by consumption of a substance
      through excusable ignorance.


The trial court also charged the jury on voluntary intoxication. At the motion for new

trial hearing, trial counsel testified that if he had known of case law providing that

excusable ignorance could include reliance on a physician’s prescription when the

defendant was taking the medication as prescribed, he would have requested a jury

instruction on it, and that he had no strategic reason for not making such a request.

      Involuntary intoxication is an affirmative defense. See Coats v. State, 303 Ga.

App. 818, 823 (3), n. 3 (695 SE2d 285) (2010). In order to raise an affirmative

defense, the defendant must first admit to the act charged, then seek to justify,

mitigate or excuse it. Id. at 823 (3). As Williams did not admit to all the elements of

the offenses charged,5 the evidence did not support a charge on this affirmative

defense and trial counsel’s failure to request a charge related to that unsupported

defense did not constitute ineffective assistance. See Boccia v. State, 335 Ga. App.

687, 693 (1) (b) (ii) (782 SE2d 792) (2016).




      5
       Williams did not testify at trial, and neither opening nor closing statements
were included in the appellate record.

                                          10
       (b) Williams also raises two other ineffectiveness claims which relate only to

the aggravated sexual battery count. Because we are reversing Williams’ conviction

for aggravated sexual battery and the alleged errors are moot or unlikely to recur on

retrial, we do not address them.

       Thus, we affirm Williams’ convictions for child molestation, and we reverse

his conviction for aggravated sexual battery and remand that portion of the case for

retrial.

       Judgment affirmed in part and judgment reversed in part and case remanded.

McFadden, P.J., and Rickman, J., concur.




                                         11
