                               SECOND DIVISION
                                 MILLER, P. J.,
                             ANDREWS and SELF, 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


                                                                      March 7, 2018




In the Court of Appeals of Georgia
 A18A0333. RAY v. STATE.

      ANDREWS, Judge.

      A jury found James Roy Ray guilty of rape and two counts of sexual battery.

The trial court denied Ray’s motion for new trial, and he appeals, challenging several

evidentiary rulings and asserting that he received ineffective assistance of counsel at

trial. Although we find no merit in many of Ray’s arguments, two of his claims

require additional consideration below. Accordingly, we vacate the order denying his

motion for new trial and remand for further proceedings.

      Viewed favorably to the jury’s verdict, the evidence shows that the victim, a

mentally challenged adult, lived with her aunt and several cousins. Ray, who was also

related to the victim, visited the home on occasion, and the family spent time at his
house, as well. In December 2009, the victim disclosed to a family member that Ray

had assaulted her. The victim’s aunt reported the disclosure to the police.

      During the ensuing investigation, the victim submitted to a forensic interview

and described several instances of sexual abuse by Ray. The victim confirmed that

abuse at trial, testifying that on various occasions Ray had inserted his “boy part” into

her “girlie part,” touched her “girlie part” with his tongue and finger, placed a sex toy

on her “girlie part,” and touched her breast with his tongue. She further testified that

Ray never asked whether he could touch her, that she did not want to have sexual

relations with him, and that the encounters made her feel dirty.

      1. Ray argues that the trial court erred in admitting a video recording of the

victim’s December 29, 2009 forensic interview, which was played for the jury during

the forensic interviewer’s testimony, after the victim had testified. Ray objected to the

video’s admission, characterizing the evidence as hearsay that improperly bolstered

the victim’s credibility. The trial court disagreed with this characterization, finding

the video admissible as a prior consistent statement. On appeal, we review this

determination for abuse of discretion. See Kidd v. State, 292 Ga. 259, 260-261 (2)

(736 SE2d 377) (2013).



                                           2
      OCGA § 24-6-613 (c) governs the admissibility of prior consistent statements.

Pursuant to that provision:

      A prior consistent statement shall be admissible to rehabilitate a witness
      if the prior consistent statement logically rebuts an attack made on the
      witness’s credibility. A general attack on a witness’s credibility with
      evidence offered under Code Section 24-6-608 or 24-6-609 shall not
      permit rehabilitation under this subsection. If a prior consistent
      statement is offered to rebut an express or implied charge against the
      witness of recent fabrication or improper influence or motive, the prior
      consistent statement shall have been made before the alleged recent
      fabrication or improper influence or motive arose.


      The trial court concluded that the video recording rebutted an express or

implied charge that prosecutors or family members had improperly influenced the

victim’s testimony. We find no error. One relative admitted on cross-examination that

she had discussed the victim’s testimony with the victim shortly before trial. Another

relative noted that the victim was “pretty easily suggestible,” will “answer yes to

things even if she . . . doesn’t really mean yes,” and “wants to make the people around

her happy.” The victim also conceded that she had discussed her testimony and

practiced her responses with personnel from the district attorney’s office.




                                          3
      Ray’s primary defense at trial was that various individuals had convinced the

mentally-disabled victim to fabricate the allegations against him. He certainly claimed

that the victim was influenced before the December 29, 2009 interview. But through

his cross-examination of the victim and other witnesses, Ray also intimated that

relatives and state officials had influenced her trial testimony after the interview

occurred. The trial court appropriately admitted the prior consistent statement to rebut

Ray’s implied charge of recent undue influence. See OCGA § 24-6-613 (c); Bolling

v. State, 300 Ga. 694, 701 (3) (797 SE2d 872) (2017) (prior consistent statement

admissible where defense implicitly argued that witness had motive to lie that arose

after statement was given).

      2. Next, Ray claims the trial court erred in excluding evidence that the victim,

who was 38 years old when the trial took place, had been sexually abused when she

was approximately 14 years old. In particular, Ray wanted to establish that the victim

was raped by her brother, whom the family later allowed to live near the victim.

According to defense counsel, this evidence was relevant to impeach the credibility

of the victim’s cousin and primary care-giver at the time of trial, who asserted that she

sought to keep the victim safe from sexual predators. The trial court disagreed,

deeming the evidence irrelevant.

                                           4
      We find no reversible error. The trial court prevented Ray from linking the

brother’s criminal history to the victim. But Ray established through cross-

examination that the brother was a registered sex offender who was briefly allowed

to live near the victim on her care-giver’s property. He thus successfully presented

evidence that called the care-giver’s credibility into question and placed a sex

offender close to the victim. Even if further information about the brother’s abuse was

relevant to impeach the care-giver, we find it highly probable that exclusion of this

evidence did not affect the verdict. See Nix v. State, 280 Ga. 141, 145 (5) (625 SE2d

746) (2006) (highly probable that exclusion of cumulative evidence did not impact

verdict). Although Ray now argues that particular testimony by other witnesses

opened the door for admission of this evidence on other grounds, he has not shown

that he raised these arguments at trial, and we will not consider them for the first time

on appeal. See Prince v. State, 257 Ga. 84, 86 (3) (355 SE2d 424) (1987) (appellate

court will not consider argument regarding admissibility of evidence raised for first

time on appeal).

      3. Ray also raises several ineffective assistance allegations, asserting that errors

by his defense team entitle him to a new trial. To establish ineffective assistance, Ray

must demonstrate that “trial counsel’s performance fell below a reasonable standard

                                           5
of conduct and that there existed a reasonable probability that the outcome of the case

would have been different had it not been for counsel’s deficient performance.”

Oliver v. State, 337 Ga. App. 90, 92 (786 SE2d 701) (2016) (citation and punctuation

omitted).

      (a) According to Ray, trial counsel unreasonably opened the door to admission

of the victim’s forensic interview by suggesting, through cross-examination, that the

victim’s testimony had been improperly influenced. We disagree. “How to conduct

cross-examination is a tactical decision within the exclusive province of counsel.”

Oliver, supra at 95 (2). And “[t]actical decisions, even if they misfire, do not

generally equate with ineffectiveness.” Id. (citation and punctuation omitted). As

noted above, Ray’s primary defense was that various individuals influenced the

victim to fabricate the sexual abuse allegations. This defense strategy, as well as

counsel’s efforts to raise questions about improper influence, were reasonable. See

id.

      (b) We also find no deficient performance with respect to the trial court’s jury

instructions. Ray claims that trial counsel should have objected to the court’s

instruction on the elements of force because it did not reference the reasonable doubt

standard. The trial court, however, defined and discussed reasonable doubt at length

                                          6
during its charge, noting the State’s burden of proof on multiple occasions. Because

the charge as a whole properly informed the jury about the reasonable doubt standard,

trial counsel was not deficient in failing to object to the cited instruction. See Sullivan

v. State, 242 Ga. App. 613, 615 (4) (530 SE2d 521) (2000) (“A trial court does not

err in failing to give an appropriate request to charge, as written, when its charge as

a whole contains the same principles of law set forth in the request.”) (footnote and

punctuation omitted).

       Ray also contends that trial counsel should have objected to the following

charge:

       If you find that the alleged victim is incapable of intelligently
       consenting, the lack of actual force necessary to overcome a resistant
       victim in other cases is supplied constructively by the rule that no more
       force need be used than necessary to effect the penetration made by the
       Defendant.


       According to Ray, this instruction relieved the State of its burden to prove

force, an essential element of rape. See OCGA § 16-6-1 (a) (1) (“A person commits

the offense of rape when he has carnal knowledge of . . . [a] female forcibly and

against her will.”). In Cook v. State, 338 Ga. App. 489, 491 (1) (790 SE2d 283)

(2016), however, we reaffirmed the principal that when a victim “is physically or

                                            7
mentally unable to give consent to the act, as when she is intoxicated, drugged, or

mentally incompetent, the requirement of force is found in the constructive force, that

is, in the use of such force as is necessary to effect the penetration made by the

defendant.” The court’s constructive force instruction was proper, undermining Ray’s

claim that counsel should have objected to it. See id. at 492-493 (2); see also Currier

v. State, 294 Ga. 392, 397 (2) (754 SE2d 17) (2014) (“Since the jury instructions were

not erroneous, counsel was not deficient for failing to make an objection that lacked

merit.”).

      (c) The victim’s aunt, who initially reported the victim’s outcry, died before

trial. Prior to her death, the aunt gave a recorded interview to police, which was

played for the jury. Ray argues that trial counsel should have objected to the

admission of this evidence, given the aunt’s unavailability for cross-examination at

trial. The record shows, however, that trial counsel explicitly consented to the

interview’s admission. As counsel explained at the new trial hearing, the defense

team believed that the interview helped show that the family had fabricated the

allegations against Ray. And in closing statements, counsel referenced the recording,

noting that the aunt’s casual demeanor during the interview was indicative of

“somebody who is making a false accusation.”

                                          8
      Trial counsel made a reasonable, tactical decision not to contest admission of

the aunt’s recorded interview. “Even though a different attorney might have chosen

a different trial strategy, this does not equate to ineffective assistance of counsel.”

Warbington v. State, 281 Ga. 464, 466 (2) (c) (640 SE2d 11) (2007); see also Ford

v. State, 290 Ga. 45, 48 (5) (a) (717 SE2d 464) (2011) (no deficient performance

where trial counsel made reasonable, strategic decision not to object to potentially

inadmissible character evidence).

      (d) A medical examination of the victim after her outcry revealed that she had

a partially-intact hymen. The State informed the trial court that it did not plan to

discuss this fact at trial because the medical finding was not conclusive of trauma or

sexual intercourse and thus was irrelevant. The trial court agreed that the finding was

“an inconclusive thing” that was “not really evidence.” Ray now claims that trial

counsel should have questioned the examining doctor about the finding to support his

defense that he never had sex with the victim. But Ray has pointed to no evidence

that a partially-intact hymen proves anything with respect to whether the victim was

raped. And the doctor who examined the victim conceded that he saw no signs of

recent trauma or visible injury. Under these circumstances, Ray has not demonstrated

that he was prejudiced by trial counsel’s failure to question the doctor about the

                                          9
victim’s hymen. See Speziali v. State, 301 Ga. 290, 295 (2) (c) (800 SE2d 525) (2017)

(even if trial counsel’s cross-examination of witness was deficient, ineffective

assistance claim failed absent a showing of prejudice).

      (e) Ray argues that trial counsel should have objected to or asked for curative

instructions regarding testimony given by the forensic interviewer that bolstered the

victim’s credibility. The record shows, however, that this testimony came out on

cross-examination, while trial counsel was exploring inconsistencies in the victim’s

interview responses. Counsel noted at the new trial hearing that she tried to highlight

the inconsistencies through her cross-examination, but was not sure how effectively

she questioned the forensic interviewer because this type of individual views

everything as “evidence of abuse.” We cannot find counsel’s effort to cross-examine

this witness deficient. Although counsel testified at the new trial hearing that she

should have objected, “[h]indsight has no place in an assessment of the performance

of trial counsel, and a lawyer second-guessing [her] own performance with the benefit

of hindsight has no significance for an ineffective assistance of counsel claim.”

Gilmer v. State, 339 Ga. App. 593, 595 (2) (a) (794 SE2d 653) (2016) (citation and

punctuation omitted).



                                          10
      Moreover, in reviewing the objective reasonableness of trial performance, we

are not limited to counsel’s subjective explanation of her conduct. See Gilmer, 339

Ga. App. at 596 (2) (a). “If a reasonable lawyer might have done what the actual

lawyer did – whether for the same reasons given by the actual lawyer or different

reasons entirely – the actual lawyer cannot be said to have performed in an

objectively unreasonable way.” Id. In this case, a reasonable lawyer might have

concluded that objecting to the bolstering testimony “could signal to the jury that the

defense was worried about such testimony, thereby emphasizing the testimony and

magnifying any harmful implications of it.” Jones v. State, 292 Ga. 593, 602 (7) (d)

(740 SE2d 147) (2013). Accordingly, Ray cannot demonstrate deficient performance

on this ground.

      (f) We are concerned, however, that Ray’s final ineffective assistance claim,

which raises a speedy trial allegation, requires further analysis below. The record

shows that Ray was first indicted for sexual battery and two counts of aggravated

battery during the January 2011 term of court. The indictment was amended with

additional charges (including rape) on June 8, 2015, and trial commenced on March

28, 2016. Citing this five-year delay between the initial indictment and trial, Ray



                                          11
argues that trial counsel should have filed a motion to dismiss on speedy trial

grounds.

      To prevail on this claim below, Ray needed to show that a motion to dismiss

would have been granted had it been filed. See Chalk v. State, 318 Ga. App. 45, 48

(1) (c) (733 SE2d 351) (2012). And consideration of Ray’s showing required the trial

court to conduct the two-part speedy trial test established by the United States

Supreme Court in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101)

(1972), and Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520)

(1992). See Chalk, supra. Under this test, the trial court first “must determine whether

the interval from the defendant’s arrest, indictment, or other formal accusation to trial

is sufficiently long to be considered ‘presumptively prejudicial.’” Id. (citation

omitted). If delay is presumptively prejudicial, the court must then decide

      whether the defendant has been deprived of his right to a speedy trial by
      analyzing a four-part balancing test that considers (1) the length of the
      delay, (2) the reason for the delay, (3) the assertion of the defendant of
      his right to a speedy trial, and (4) prejudice to the defendant.


Id.

      Although the trial court rejected Ray’s speedy-trial based ineffective assistance

claim, we cannot determine whether it conducted the appropriate analysis in doing

                                           12
so. The order denying Ray’s motion for new trial briefly references the reasons for

delay and finds no “improper prejudice.” But it does not mention the Barker-Wingo

factors or discuss how those factors should be weighted in the balancing test. It also

does not assess, to any extent, whether the delay prejudiced Ray, despite the fact that

the victim’s aunt (who reported the victim’s outcry to police) died prior to trial.

      Given the extensive delay here, evidence indicating that the State was

responsible for at least some portion of the delay, and the death of a potentially

important witness, we find that the trial court must conduct the appropriate test and

enter findings of fact and conclusions of law before we can review Ray’s claim of

error. See Higgenbottom v. State, 288 Ga. 429, 431 (704 SE2d 786) (2011) (limited

findings made by the trial court with respect to Barker-Wingo balancing test

insufficient for proper appellate review); Thomas v. State, 331 Ga. App. 641, 662 (8)

(b) (ii) (771 SE2d 255) (2015) (noting that the trial court “did not break down the

overall pretrial delay into relevant time periods and assign responsibility for delay to

each time period”); Leopold v. State, 324 Ga. App. 550, 557-558 (2) (751 SE2d 184)

(2013) (“It is imperative . . . that in cases implicating a defendant’s constitutional

right to speedy trial, the trial court enter findings of fact and conclusions of law

consistent with Barker.”). Accordingly, we vacate the order denying Ray’s motion for

                                          13
new trial and remand for the trial court to (1) resolve this ineffective assistance claim

using the Barker-Wingo analysis, and (2) enter an order detailing its findings and

conclusions. See Higgenbottom, supra; Thomas, supra; Leopold, supra.

      4. Finally, Ray argues that the trial court erred in excluding evidence that the

victim’s aunt had, on several previous occasions, falsely accused other individuals of

sexual misconduct. Ray proffered evidence regarding these prior accusations at a

pretrial hearing, but the trial court found the evidence irrelevant, noting that the aunt

was deceased and would not be a witness at trial .

      Evidence of a victim’s prior false claims of sexual abuse are admissible in a

sexual assault case “to attack the credibility of the prosecutrix and as substantive

evidence tending to prove that the instant offense did not occur.” Smith v. State, 259

Ga. 135, 137 (1) (377 SE2d 158) (1989). We recognize that Ray’s allegations involve

purportedly false accusations by the victim’s aunt, rather than the victim. But Ray

asserted that the family of the mentally-challenged victim had convinced her to

fabricate the allegations against him, and the aunt made the initial report to police.

Given these particular circumstances, evidence that the aunt had previously made

false claims of sexual abuse would be relevant to the veracity of the allegations here.

See id.; Goldstein v. State, 283 Ga. App. 1, 6 (3) (a) (640 SE2d 599) (2006) (trial

                                           14
counsel ineffective for failing to investigate and present evidence that victim’s mother

had previously made false sexual abuse allegations); In the Interest of M. G., 239 Ga.

App. 787, 790 (521 SE2d 918) (1999) (trial court erred in refusing to allow defendant

to cross-examine victim’s grandfather about his prior false child molestation

allegations, where grandfather was first to question the victim and report the outcry).

      Before admitting such evidence, however, the trial court must make a threshold

determination that “a reasonable probability of falsity exists.” Smith, supra at 137 (1)

(citation and punctuation omitted). Although the trial court held a pretrial hearing and

received evidence regarding the prior allegations, it does not appear that the court

assessed the truth or falsity of the claims. Instead, it erroneously found the evidence

irrelevant based on the aunt’s death and consequential absence from trial.

Accordingly, on remand, the trial court must make the necessary threshold

determination regarding falsity. If a reasonable likelihood of falsity exists, evidence

of the allegations is admissible, and Ray is entitled to a new trial. See Peters v. State,

224 Ga. App. 837, 839-840 (4) (481 SE2d 898) (1997) (remanding for falsity

determination); Humphrey v. State, 207 Ga. App. 472, 476 (2) (428 SE2d 362) (1993)

(“Since appellant contended that no rape occurred, any evidence showing a

‘reasonable probability’ that the prosecutrix had made other false accusations would

                                           15
certainly be the strongest defense available to him; thus it cannot be said that the

failure to adhere to the Smith rule was harmless error.”).

      Judgment vacated and case remanded with direction. Miller, P. J., and Self,

J., concur.




                                         16
