                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            MCMILLIAN and GOSS, 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


                                                                        May 17, 2019




In the Court of Appeals of Georgia
 A19A0381. BOYD v. THE STATE.

       MCFADDEN, Presiding Judge.

       After a jury trial, Mark Bradley Boyd was convicted of child molestation for

having sexual intercourse with 14-year-old V. B. and for sexual exploitation of a

child for knowingly possessing a digital image of V. B.’s genitals on his cellular

phone. Boyd argues that the state failed to prove venue as to either offense, but the

evidence was sufficient to authorize the jury to find that the crimes were committed

in Coweta County, as charged. Boyd argues that the trial court erred in admitting

evidence that he had engaged in other acts of sexual intercourse with minors, but the

trial court did not abuse his discretion in that ruling. Finally, Boyd argues that his trial

counsel was ineffective in failing to seek to strike a juror who had been molested as
a child, but he has not shown both that this failure constituted deficient performance

and that he was prejudiced by it. So we affirm.

      1. Evidence.

      On appeal from a criminal conviction, we view the evidence “in the light most

favorable to the verdict, and the defendant no longer enjoys the presumption of

innocence[.]” Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation

omitted). So viewed, the evidence showed that for several months in late 2014, Boyd

dated V. B.’s mother. During that time, Boyd sometimes made suggestive comments

to V. B., the two exchanged sexual messages over a messaging app on their cellular

devices, and V. B. sent Boyd some nude photographs of herself, including a

photograph of her genitals. On December 15, 2014, V. B. spent the night at Boyd’s

house and the two had sexual intercourse. V. B. disclosed that event to Boyd’s

daughter, who was her school friend. In January 2015, after Boyd and V. B.’s mother

broke off their relationship, V. B. disclosed to her mother that Boyd had molested her.

She repeated this disclosure to a psychologist during a forensic examination. Law

enforcement officers arrested Boyd, and they recovered from his cellular phone nude

photographs of V. B.



                                          2
      Although Boyd does not challenge the sufficiency of the evidence except as to

venue, the evidence recited above is sufficient under the standard of Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See generally OCGA §

16-6-4 (a) (1) (“A person commits the offense of child molestation when such person

. . . [d]oes any immoral or indecent act to or in the presence of or with any child under

the age of 16 years with the intent to arouse or satisfy the sexual desires of either the

child or the person[.]”); OCGA § 16-12-100 (b) (8) (“It is unlawful for any person

knowingly to possess or control any material which depicts a minor or a portion of

a minor’s body engaged in any sexually explicit conduct.”); OCGA § 16-12-100 (a)

(4) (D) (“[s]exually explicit conduct” means “actual or simulated . . . [l]ewd

exhibition of the genitals or pubic area of any person”).

      2. Venue.

      Boyd argues that the state failed to prove venue as to either offense. We

disagree.

      As with the other elements of a criminal offense, the state must prove the

element of venue beyond a reasonable doubt. See Pike v. State, 302 Ga. 795, 797 (1)

(809 SE2d 756) (2018). On appeal, “we view the evidence of venue in a light most

favorable to support the verdict and determine whether the evidence was sufficient

                                           3
to permit a rational trier of fact to find beyond a reasonable doubt that the crime or

crimes were committed in the county in which the defendant was indicted.” Worthen

v. State, 304 Ga. 862, 865 (3) (a) (823 SE2d 291) (2019) (citation and punctuation

omitted). “Whether the state met its burden as to venue is a matter resting soundly

within the purview of the jury, and ambiguities in the trial evidence must be resolved

by the trial jury, not appellate courts.” Garza v. State, 347 Ga. App. 335, 337 (1) (b)

(819 SE2d 497) (2018) (citations and punctuation omitted).

      (a) Evidence of venue as to child molestation.

      The trial evidence, viewed most favorably to the verdict, showed that Boyd’s

act of child molestation — having sexual intercourse with 14-year-old V. B. —

occurred at his house. Boyd argues that the evidence was insufficient to show that his

house was located in Coweta County, where he was indicted. But V. B. testified at

trial that she thought Boyd’s house was in Coweta County. When asked the location

of the house, she first replied that it was in the city of Moreland. She was then asked,

“Do you know what county that is?” She replied, “I think that’s still in Coweta

County.”

      V. B.’s testimony authorized the jury to find that the act of child molestation

occurred, as charged, in Coweta County. See Liggins v. State, 239 Ga. 452, 454 (2)

                                           4
(238 SE2d 34) (1977) (victim’s testimony that crime occurred in particular county

was sufficient to establish venue); Long v. State, 324 Ga. App. 882, 889 (1) (752

SE2d 54) (2013) (same). We find no merit in Boyd’s argument that, because V. B.

prefaced her testimony with the phrase “I think,” her testimony about the location of

Boyd’s house was a lay opinion subject to the foundational requirements of OCGA

§ 24-7-701 (a). See generally Butler v. State, 292 Ga. 400, 405-406 (3) (a) & n. 10

(738 SE2d 74) (2013) (discussing difference between fact testimony and opinion

testimony). While the phrase “I think” may have raised a question about the certainty

of V. B.’s testimony that the house was in Coweta County, it was for the jury as

factfinder, rather than this court, to determine whether to credit the testimony. See In

the Interest of S. W., 337 Ga. App. 110, 111-112 (1) (786 SE2d 499) (2016) (trier of

fact was authorized to resolve any apparent uncertainties in evidence regarding

venue).

      (b) Evidence of venue as to sexual exploitation.

      The state charged Boyd with committing, in Coweta County, the offense of

sexual exploitation of a child by possessing a digital image of V. B.’s genitals. Boyd

challenges the evidence that his workplace was located in Coweta County. While the



                                           5
state offered no direct evidence of this fact,1 circumstantial evidence authorized the

jury to find the necessary venue.

      Viewed most favorably to the verdict, the trial evidence showed that the image

was on Boyd’s cellular phone from November 2014, when he received it, through

January 21, 2015, when he was apprehended and the phone seized from him while he

was at work. As discussed above, the trial evidence also showed that Boyd lived in

Coweta County during this time frame. “[L]ike any other fact, venue may be proved

by circumstantial evidence, and it is enough if the fact of venue is properly inferable

from all the evidence.” Worthen, 304 Ga. at 871 (3) (e) n. 6 (citation and punctuation

omitted). The jury could properly infer from this evidence that Boyd possessed his

cellular phone, and thus possessed the image of V. B.’s genitals, in Coweta County

on some date within the statute of limitation. See Weyer v. State, 333 Ga. App. 706,

712 (1) (b) (776 SE2d 304) (2015) (jurors are permitted to consider “their own

common-sense understanding of the world” when drawing reasonable inferences from

circumstantial evidence). Contrary to Boyd’s assertion, the state was not required to

      1
        We take this opportunity to reiterate our Supreme Court’s recent observation
that “to avoid venue becoming an issue on appeal, prosecutors should not forget to
ask what is usually just the question or two needed to establish directly the county in
which each crime alleged was committed.” Worthen, 304 Ga. at 870 (3) (d) n. 5
(citation omitted; emphasis in original).

                                          6
prove that he possessed the image on the specific date that he was apprehended,

because the indictment did not allege that the date of the offense was material. See

Ledesma v. State, 251 Ga. 885 (1) (a) (311 SE2d 427) (1984); State v. Swint, 284 Ga.

App. 343, 344 (2) (643 SE2d 840) (2007).

      3. Other acts evidence.

      Boyd argues that the trial court abused his discretion in admitting evidence that

he previously had engaged in sexual intercourse with two other girls who were

between 12 and 15 years old at the time. The trial court instructed the jurors that they

could consider the other acts evidence only for the limited purpose of showing intent

and knowledge. Boyd argues that the trial court should have excluded the other acts

evidence under OCGA § 24-4-403 because its probative value was substantially

outweighed by the danger of unfair prejudice. We find no error.

      “In a criminal proceeding in which the accused is accused of an offense of

child molestation, evidence of the accused’s commission of another offense of child

molestation shall be admissible and may be considered for its bearing on any matter

to which it is relevant.” OCGA § 24-4-414 (a). This is “a rule of inclusion, with a

strong presumption in favor of admissibility[.]” Robinson v. State, 342 Ga. App. 624,

634 (4) (a) (805 SE2d 103) (2017) (citation and punctuation omitted). Nevertheless,

                                           7
the evidence may be excluded “if its probative value is substantially outweighed by

the danger of unfair prejudice.” OCGA § 24-4-403. See Jackson v. State, 342 Ga.

App. 689, 692 (805 SE2d 457) (2017). But “[t]he exclusion of evidence under

[OCGA § 24-4-]403 is an extraordinary remedy which should be used only

sparingly.” Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016) (citation,

punctuation, and footnote omitted). We review a trial court’s decision to admit

evidence under OCGA § 24-4-414 (a), including the weighing of the OCGA § 24-4-

403 factors, for abuse of discretion. Jackson, supra at 691; State v. Chapman, 322 Ga.

App. 82, 86 (744 SE2d 77) (2013).

      The trial court did not abuse his discretion in admitting, for the purpose of

proving intent, the evidence that Boyd had engaged in sexual intercourse with two

other victims who were around the same age as V. B. Boyd pled not guilty and

testified at trial that V. B.’s account of the crimes was not true. By doing so, he “put

his intent at issue in this case.” Olds v. State, 340 Ga. App. 401, 404 (1) (a) (797

SE2d 661) (2017). The other acts evidence had probative value on this point. The

other acts were factually similar to the charged offense of child molestation, and

evidence of those acts “aided the jury in determining whether [Boyd] committed th[at]

crime[ ].” Id. at 405 (2). See Dixon v. State, 341 Ga. App. 255, 262 (1) (b) (800 SE2d

                                           8
11) (2017) (evidence of other acts, which “each involved inappropriate sexual contact

between [the defendant] and a child of similar age[,]” was highly probative where the

defendant attacked the credibility of victim). The fact that the other acts were remote

in time — between 16 and 22 years before — did not demand a different ruling by the

trial court. There is no “bright-line rule as to how old is too old,” Harris v. State, 340

Ga. App. 865, 868 (1) (b) (798 SE2d 498) (2017) (citations omitted), and Georgia

courts have admitted evidence of other acts of child molestation that were more

remote in time than the acts at issue in this case. See State v. McPherson, 341 Ga.

App. 871, 876 (1) (800 SE2d 389) (2017) (acts occurred about 35 years earlier);

Harris, supra at 868-869 (1) (b) (acts occurred more than 44 years earlier). In

addition, the trial court’s limiting instructions to the jury “mitigated the risk of undue

prejudice.” Dixon, supra at 262 (1) (b) (citations omitted). “Consequently, the trial

court properly found that the probative value of the extrinsic acts evidence was not

substantially outweighed by its prejudicial effect,” Olds, 340 Ga. App. at 406 (2),

especially given the strong presumption in favor of admissibility under OCGA § 24-

4-404 (a).

      4. Ineffectiveness of trial counsel.



                                             9
      Boyd argues that his trial counsel rendered ineffective assistance during jury

selection, when a prospective juror revealed that both she and members of her family

had been victims of child molestation or other sexual offenses. The juror, who had

been molested as a child, expressed regret at not having reported the molestation

when it occurred. But she also stated that she could be a fair and impartial juror and

that she had not formed an opinion about Boyd’s guilt or innocence. Boyd’s trial

counsel neither moved to strike the juror for cause nor exercised a peremptory strike,

and she was seated on the jury.

      “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

resulted in prejudice to the defendant.” Welbon v. State, 304 Ga. 729, 731 (2) (822

SE2d 277) (2018) (citations omitted). This requires Boyd to show both that his trial

counsel “performed his duties at trial in an objectively unreasonable way, considering

all the circumstances and in the light of prevailing professional norms, [and that there

is] a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Simpson v. State, 298 Ga. 314, 318 (4)

(781 SE2d 762) (2016) (citations and punctuation omitted). If he failed to show one

of these prongs, then we need not review the other prong. Taylor v. State, 302 Ga.

                                           10
176, 178 (2) (805 SE2d 851) (2017). “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.” Cade v. State, 289 Ga. 805, 808

(4) (716 SE2d 196) (2011) (citation and punctuation omitted).

       The trial court held that Boyd failed to show that his trial counsel was deficient,

finding that trial counsel’s decision not to strike the juror was a reasonable strategy.

“Which, and how many, prospective jurors to strike is a quintessential strategic

decision.” Simpson v. State, 298 Ga. at 318 (4) (citation and punctuation omitted).

This is true even as to the decision whether or not to move to strike a juror for cause.

See Taylor, 302 Ga. at 177-178 (2). In this case, the juror stated in voir dire that she

could be impartial, despite her experience of molestation, and she stated more than

once that Boyd was innocent until proven guilty. At the hearing on Boyd’s motion for

new trial, his lead trial counsel testified that he thought, based on the juror’s voir dire

answers and her body language, that “she would be a decent juror,” notwithstanding

her history as a victim of child molestation and her relationships with other sexual-

assault victims. Trial counsel expressed the view that a person who had been a crime

victim “is going to look at the victim a little bit closer than someone that’s never been

through that experience. They can judge credibility better oftentimes.” The trial court

                                            11
expressly credited both the juror’s voir dire statements and trial counsel’s hearing

testimony in his order, and although Boyd questions that credibility determination as

to his trial counsel, the record does not show that determination was clearly

erroneous, so we accept it. See Cade, 289 Ga. at 808 (4).

      “[T]he transcript of voir dire does not reveal that [the juror] had a fixed and

definite opinion as to the issue of guilt or that she would be unable to decide the case

based on the evidence and the trial court’s instructions.” Cade, 289 Ga. at 808 (4).

She merely volunteered that she was a victim of child molestation and had relatives

who were victims of sexual crimes. In Georgia, “there is no per se rule excluding

victims of crime [from a jury], even if the crime charged in the indictment is the same

crime of which the potential juror was a victim.” Doss v. State, 264 Ga. App. 205, 211

(4) (590 SE2d 208) (2003) (involving child molestation). See generally Kim v. Walls,

275 Ga. 177, 179 (563 SE2d 847) (2002) (“the law presumes that potential jurors are

impartial”). In contrast, in several of the cases cited by Boyd, the jurors expressed an

inability to be impartial. See Menefee v. State, 270 Ga. 540, 541-542 (2) (512 SE2d

275) (1999) (juror indicated she had a prejudice against persons of defendant’s race),

disapproved in part by Willis v. State, 304 Ga. 686, 706 (11) (a) n. 3 (820 SE2d 640)

(2018); Park v. State, 260 Ga. App. 879 (1) (581 SE2d 393) (2003) (juror stated he

                                          12
presumed defendant was guilty), disapproved in part by Willis, supra; Matarranz v.

State, 133 So3d 473, 477 (Fla. 2013) (juror indicated she could not be fair).2

      Consequently, Boyd “neither overcame the strong presumption that counsel’s

failure to seek [the juror’s] removal constituted reasonable professional assistance nor

[did he] . . . show how he was prejudiced by that failure.” Cade, 289 Ga. at 808 (4)

(citations omitted). Because “[w]e cannot say under the circumstances of this case

that no competent attorney would have struck the jury as [Boyd’s] lawyer did[, Boyd]

has not demonstrated deficient performance with respect to the selection of a jury.”

Simpson, 298 Ga. at 319 (4) (citation omitted). See Taylor, 302 Ga. at 178 (2) (where

transcript showed none of the seated jurors had expressed in voir dire an opinion that

was so fixed they could not be impartial, the trial court was not deficient in failing to

strike them). The trial court did not err in denying Boyd’s motion for new trial based

on ineffective assistance of counsel.

      Judgment affirmed. McMillian and Goss, JJ., concur.




      2
        Although Boyd invites us to consider Florida law, we see no need to look
outside of Georgia law to decide this appeal.

                                           13
