                               FIRST DIVISION
                                BARNES, P. J.,
                           MCMILLIAN and REESE, 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 14, 2018




In the Court of Appeals of Georgia
 A18A0479. VENTURA v. THE STATE.

      BARNES, Presiding Judge.

      Jorge Ventura was convicted by a Cobb County jury of two counts of child

molestation and one count of enticing a child for indecent purposes. Thereafter,

Ventura filed a motion and amended motion for new trial, which the trial court

denied. On appeal, Ventura contends that the prosecutor should have been

disqualified because of a conflict of interest, the trial court erred by failing to permit

questions about witness bias or motive, trial counsel was ineffective, and that he did

not have proper notice that he might be charged with the lesser included offense of

child molestation. Upon our review and consideration of Ventura’s alleged errors, we

affirm.
      1. Ventura does not challenge the sufficiency of the evidence, however,

construed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307

(99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that after Ventura met the

victim on Facebook, he visited her at her home, forced the 13-year-old victim into her

bedroom, locked the door, pulled down her pants, and inserted his finger into her

vagina and fondled her breasts. This evidence was sufficient for a rational trier of fact

to find Ventura guilty of the crimes charged beyond a reasonable doubt. See

Castaneda v. State, 315 Ga. App. 723 (1) (727 SE2d 543) (2012).

      2. Ventura contends that the prosecutor had a conflict of interest and should

have been disqualified because her husband had previously represented him in an

unrelated felony case in Cobb County. He contends that during his representation the

prosecutor’s husband learned confidential information about him which he “may have

unwittingly shared” with the prosecutor. Further, according to Ventura, the same rules

of professional conduct which prohibit partner and associates at a disqualified

attorney’s law firm from accepting employment, should be employed in this

circumstance. In denying Ventura’s motion for new trial on this ground and

ascertaining no conflict of interest, the trial court found that nothing in the Georgia



                                           2
Rules of professional conduct prohibit a prosecutor from prosecuting the former

client of his or her spouse. We agree.

      During the preliminary hearing before trial, the prosecutor disclosed that her

husband had previously represented Ventura in a 2010 conviction for terroristic

threats. And that, in the event Ventura elected to testify, “the State could be tendering

that certified conviction against Ventura.” Ventura’s attorney responded that he did

not see “any conflict . . . [with] the mere fact that [the prosecutor’s] husband stood

beside [Ventura] when he entered a plea.” Ventura acknowledged that he was aware

of the relationship, but responded when asked if he was satisfied that there was no

conflict,

      you’re husband and wife. I mean, you talk to each other every day and
      every night . . . Hey, guess what. I got your – the one you represented for
      terroristic threat, he pleading guilty or whatever, I’m going to take him
      to trial. So to be honest with you I don’t know, to be honest with you.


Thereafter, the trial court found that it “was satisfied that here’s no significant

conflict, or no conflict with respect to proceeding with this case based upon that sole

fact. And particularly the fact that . . . it was something you were able to discuss at

some time prior to the time of trial.”



                                           3
      In liberally construing the prosecutor’s disclosure and Ventura’s response as

a motion to disqualify,

      [w]e apply an abuse of discretion standard when reviewing a trial court’s
      ruling on a motion to disqualify a prosecutor. See Head v. State [253 Ga.
      App. 757, 758 (2) (560 SE2d 536) (2002)] (abuse of discretion standard
      applies to rulings on motion to disqualify). Such an exercise of
      discretion is based on the trial court’s findings of fact which we must
      sustain if there is any evidence to support them.


Whitworth v. State, 275 Ga. App. 790, 791 (1) (622 SE2d 21) (2005).

             There are two generally recognized grounds for disqualification
      of a prosecuting attorney. The first such ground is based on a conflict of
      interest, and the second ground has been described as “forensic
      misconduct.” For example a conflict of interest has been held to arise
      where the prosecutor previously has represented the defendant with
      respect to the offense charged, or has consulted with the defendant in a
      professional capacity with regard thereto; such conflict also has been
      held to arise where the prosecutor has acquired a personal interest or
      stake in the defendant’s conviction. In applying these standards, the
      reversal of a conviction due to such a conflict of interest requires more
      than a theoretical or speculative conflict. An actual conflict of interest
      must be involved.


(Citations and punctuation omitted.) Id. 793 (1) (b).



                                          4
      Ventrura’s assertion that the prosecutor’s marriage to an attorney that

represented him in an unrelated plea three years earlier might result in the prosecutor

gaining confidential information in the prosecution of an unrelated case, amounts to

the type of status disqualification that the Georgia Supreme Court rejected in

Blumenfeld v. Borenstein, 247 Ga. 406 (276 SE2d 607) (1981). There, the Court

refused to assume a per se rule of disqualification on the sole ground of a marital

relationship between the attorneys. Id. at 410. The Court held where, as is the case

here, “the appearance of impropriety [is] based not on conduct but on status alone.

This is an insufficient ground for disqualification.” Id. As the Court reasoned,

“[w]hile we cannot disagree with the proposition that the marital relationship may be

the most intimate relationship of a person’s life, it does not follow that professional

people allow this intimacy to interfere with professional obligations.” Id. at 408. See

Jones v. Jones, 258 Ga. 353, 354 (369 SE2d 478) (1988) (“We have found no

authority, and none has been cited to us, for the proposition that married lawyers who

are involved in active litigation on opposing sides of a case must be disqualified.”).

      Here, we cannot say that the trial court abused its discretion in denying

Ventura’s motion for new trial on this basis.



                                          5
      2. Ventura also contends that the trial court erred by refusing to permit him to

question the victim and her parents about the “U Visa,” and that trial counsel was

ineffective for failing to ask the victim whether she was eligible for a U visa. He

asserts that whether the victim or her family were illegally in the United States was

relevant to show motive for testifying or bias against the appellant. We find no

reversible error.

             Even if we assume that the trial court should have allowed
      defense counsel to cross-examine the victims about their immigration
      status and any subjective belief they might have had that testifying for
      the state might somehow have benefitted them, [Ventura] must still
      show harm as well as error to prevail on appeal. Under the standards set
      out by the Supreme Court of Georgia, the “highly probable” test makes
      affirmance conditional on high probability that error did not affect the
      judgment. The test compels a judge to go beyond the appearances of the
      result to an examination of what causal links there may be between error
      and the judgment. We find it highly probable that the outcome of
      [Ventura’s] trial would not have been different had his counsel been
      allowed to cross-examine the victims in this area. The evidence against
      [Ventura] was overwhelming, there had been no discussions between the
      state and the victims about assistance with their immigration status, and
      there were no pending immigration proceedings against the victim[] [or
      her parents].




                                          6
(Citations and punctuation omitted.) Lemons v. State, 270 Ga. App. 743, 749-750 (4)

(608 SE2d 15) (2004). See Lucas v. State, 303 Ga. 134, 139 (2) (810 SE2d 491)

(2018) (“Lucas was not prevented from asking, for example, whether A. L. hoped to

receive any benefit as a result of his testimony. Only his immigration status was

off-limits.”)

      Likewise, for this same reason, trial counsel was not ineffective for failing to

question the parents more extensively about their immigration status. To prevail on

an ineffectiveness claim, Ventura “must show counsel’s performance was deficient

and that the deficient performance prejudiced him to the point that a reasonable

probability exists that, but for counsel’s errors, the outcome of the trial would have

been different.” Myers v. State, 275 Ga. 709, 713 (4) (572 SE2d 606) (2002).

Moreover, “[t]he likelihood of a different result must be substantial, not just

conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225)

(2012). Further, if Ventura fails to meet his burden of proving either prong of the test,

the reviewing court does not have to examine the other prong. Cuzzort v. State, 307

Ga. App. 52, 55 (2) (703 SE2d 713) (2010).

      Ventura claims that he was prejudiced because establishing whether the victim

and her parents were in the United States illegally was relevant to establish motive

                                           7
that “the child or her parents could obtain certain U. S. immigration benefits by

claiming to be the victim of a qualifying crime.” However, he does not say what

immigration benefits undocumented victims of child molestation are entitled to.

Moreover, it is more likely that, if indeed, they were undocumented, they would be

less inclined to seek police involvement for fear of discovery. See Leopold v. State,

324 Ga. App. 550, 556 (1) (c) (751 SE2d 184) (2013) (appellant failed to meet his

burden of showing ineffective assistance when he failed to present any additional

evidence to show evidence of deportation risk should have been discovered and used

during cross-examination). Thus, this claim of ineffectiveness fails.

      3. Ventura also claims that certain testimony was hearsay and argues that either

the trial court erred in admitting the testimony, or that trial counsel was ineffective

for failing to object. Ventura complains that testimony from the victim’s aunt about

what the victim and the victim’s mother told her was prejudicial hearsay. See OCGA

§ 24-8-801 (c) (“‘Hearsay’ means a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.”)1 However, this testimony was cumulative of the victim and the

      1
         Ventura was tried in 2014, therefore, the new Evidence Code applied to his
trial. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1,
2013, and shall apply to any motion made or hearing or trial commenced on or after

                                          8
victim’s mother’s admissible statements made during direct and cross-examination.

See Brown v. State, 288 Ga. 404, 408 (3) (703 SE2d 624) (2010) (admission of

hearsay was harmless error because hearsay was cumulative of other admissible

evidence). Moreover, pursuant to OCGA § 24-8-820 the State provided Ventura with

notice of its intent to introduce evidence of child hearsay statements, and thus the

aunt’s testimony about what the victim told her was admissible as child hearsay.2

      For these same reasons, Ventura’s ineffectiveness claim as to this testimony

also fails. See Cuzzort, 307 Ga. App. at 55 (2).




such date.”)
      2
       The Child Hearsay Statute, OCGA § 24-8-820, provides:
      A statement made by a child younger than 16 years of age describing
      any act of sexual contact or physical abuse performed with or on such
      child by another or with or on another in the presence of such child shall
      be admissible in evidence by the testimony of the person to whom made
      if the proponent of such statement provides notice to the adverse party
      prior to trial of the intention to use such out-of-court statement and such
      child testifies at the trial, unless the adverse party forfeits or waives such
      child’s testimony as provided in this title, and, at the time of the
      testimony regarding the out-of-court statements, the person to whom the
      child made such statement is subject to cross-examination regarding the
      out-of-court statements.

                                            9
      4. Although Count 1 of the indictment charged Ventura with aggravated sexual

battery, he was convicted of the lesser included offense of child molestation. Ventura

contends that he did not have notice prior to trial that he could be convicted of the

lesser included offense of sexual molestation.

      Count 1 of the indictment, aggravated sexual battery, charged that Ventura “did

intentionally penetrate the sex organ, to wit: vagina, of [the victim] with a foreign

object, to wit: his finger, without the consent of said person.” During the charge

conference, Ventura requested a jury charge on sexual battery as a lesser included

offense to Count 1, aggravated sexual battery. The State requested that the jury also

be charged on child molestation as an additional lesser-included offense to aggravated

sexual battery. Ventura did not object, nor did he object when the trial court later

requested that the attorneys review the revised verdict form, which included both

lesser included offenses. The trial court gave both charges, and Ventura did not object

at the conclusion of the jury charge.

      We note that Ventura does not appear to challenge the giving of the charge on

the lesser included offense of child molestation, which, given his failure to object,

would require this Court to review the jury charge for plain error. See OCGA § 17-8-

58 (b) (failure to object regarding a jury instruction at trial precludes appellate review

                                           10
unless “the jury charge constitutes plain error which affects substantial rights of the

parties.”). Nor does he appear to contend that child molestation charge was not a

lesser included offense of aggravated sexual battery. Ventura’s challenge only

appears to be that the indictment did not provide him with notice that, as to Count 1,

aggravated sexual battery, he could also, alternatively, be charged with the lesser

included offense of child molestation.

      Contrary to Ventura’s contention, “under Georgia law, a defendant is on notice

of the crime charged (named) in the indictment or accusation and (1) lesser crimes

which are included in the crime charged as a matter of law and (2) other lesser crimes

which are shown by the facts alleged to show how the crime charged was

committed.”(Citations and punctuation omitted.) Hill v. Williams, 296 Ga. 753, 758

(770 SE2d 800) (2015). See Messick v. State, 209 Ga. App. 459, 460 (1) (433 SE2d

595) (1993) (This Court rejected appellant’s contention that even if terroristic threats

is an included offense of aggravated assault with a deadly weapon, the indictment

failed to notify appellant that he could be convicted of terroristic threats.) See OCGA

§ 16-1-6.3 “Moreover, “[t]o prevail on a claim that the indictment failed to give


      3
              An accused may be convicted of a crime included in a
             crime charged in the indictment or accusation. A crime is

                                          11
adequate notice and thereby worked a substantial denial of due process, [Ventura]

was required . . . to show prejudice.” Hill, 296 Ga. at 758-759. This he has not done.

In fact, Ventura does not assert that the purported lack of notice had a prejudicial

impact on the outcome of the trial.

      Accordingly, this enumeration fails.

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




             so included when: (1) It is established by proof of the same
             or less than all the facts or a less culpable mental state than
             is required to establish the commission of the crime
             charged; or (2) It differs from the crime charged only in the
             respect that a less serious injury or risk of injury to the
             same person, property, or public interest or a lesser kind of
             culpability suffices to establish its commission.

                                           12
