                               FIFTH DIVISION
                                REESE, P. J.,
                            MARKLE and COLVIN, 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.
                               https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                    August 17, 2020



In the Court of Appeals of Georgia
 A20A0855. ALEXANDER v. THE STATE.

      COLVIN, Judge.

      On appeal from his conviction for multiple counts of rape, aggravated child

molestation, aggravated sexual battery, incest, and false imprisonment arising from

his attacks on his two daughters, Stephen Alexander argues that trial counsel was

ineffective. We find no error and affirm.

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

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)

(2004). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only whether, after viewing the evidence in the light most favorable to the

prosecution, “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.

S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

      Thus viewed in favor of the verdict, the record shows that the victims, ages

seven and five, were living with their mother, their stepbrother, and their stepfather

Alexander in Habersham County when Alexander forced the older victim to give him

oral sex, touched her vagina, and attempted to penetrate her vagina with his penis. He

also threatened to have the victim taken away from her mother if she told anyone

about the abuse. The abuse continued after the family moved to Banks County, where

Alexander came into the bedroom shared by the victims, told them that it was “time

for [them] to be a woman and grow up” and asked which one of them was “going to

go first.” Alexander penetrated the younger victim’s vagina with his penis and then

told her to shower and give him her clothes to wash. Alexander then raped the older

victim as well. Afterward, Alexander apologized to his stepdaughters and swore on

a Bible that he would not attack them again.

      When the attacks on the victims escalated in June 2014 to include forced oral

sex and intercourse from behind, and with both girls showing signs of mental trauma,

the younger victim told her mother about the abuse. She extended her outcry to a

police investigator that same evening. Alexander’s computer showed that he had

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visited pornographic sites presenting images of incest. A medical examination

showed that the younger victim’s genitals were lacerated, and Alexander’s DNA was

found in her vagina. The mother later signed a recantation, later read to the jury,

asserting that the girls had taken a used condom from the trash and put its contents

on the younger victim’s bed and body.

      Alexander was charged with four counts of rape, four counts of statutory rape,

eight counts of aggravated child molestation, two counts of aggravated sexual battery,

four counts of incest, and two counts of false imprisonment. After some of the counts

were nolle prossed, and after a trial at which both victims testified, the jury found

Alexander guilty of three counts of rape, three counts of statutory rape, one count of

aggravated child molestation, two counts of aggravated sexual battery, three counts

of incest, and both counts of false imprisonment. After merging some of these counts,

the trial court sentenced Alexander to life in prison without the possibility of parole

plus 125 years. His motion for new trial was denied.

      1. Although Alexander has not asserted that the evidence was insufficient, we

have reviewed the record, and conclude that the evidence was indeed sufficient to

sustain his conviction. See OCGA §§ 16-6-1 (defining rape), 16-6-3 (defining

statutory rape), 16-6-4 (defining aggravated child molestation), 16-6-22.2 (defining

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aggravated sexual battery), 16-6-22 (defining incest), 16-5-41 (defining false

imprisonment); Tinson v State, 337 Ga. App. 83, 84-86 (1) (785 SE2d 914) (2016)

(evidence including victim’s testimony was sufficient to sustain a conviction for rape,

incest, sexual battery, and aggravated child molestation); Jackson, supra.

      2. On appeal, Alexander argues that trial counsel was ineffective when he (a)

failed to object to the exclusion of Alexander’s immediate family from the courtroom

during the victims’ testimony, and the general public during the testimony of a child

advocate interviewer; (b) failed to object to bolstering by two of the State’s witnesses;

(c) abandoned his objection to the court’s instruction on the proper use of the victims’

out-of-court statements; and (d) failed to contest the State’s expert testimony

concerning the DNA result. We disagree.

      To show ineffective assistance of counsel, a defendant must show that

counsel’s performance was deficient and that the deficient performance prejudiced

the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing

Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). As to

deficient performance, “every effort must be made to eliminate the distorting effects

of hindsight,” and the trial court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” (Citation

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and punctuation omitted.) White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995). As

to prejudice, a defendant need only show “a reasonable probability of a different

outcome” due to trial counsel’s deficient performance. (Punctuation and footnote

omitted.) Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008). Finally, the

question of ineffectiveness is a mixed one of both law and fact: “we accept the trial

court’s factual findings and credibility determinations unless clearly erroneous, but

we independently apply the legal principles to the facts.” (Footnote omitted.) Suggs

v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

      (a) The record shows that before the victims’ testimony, the trial court cleared

the courtroom, including Alexander’s relatives, with the exception of the victims’

uncle. Trial counsel did not object to this closure, which also encompassed the

testimony of the child advocate interviewer.

      OCGA § 17-8-54 provides:

      In the trial of any criminal case, when any person under the age of 16 is
      testifying concerning any sexual offense, the court shall clear the
      courtroom of all persons except parties to the cause and their immediate
      families or guardians, attorneys and their secretaries, officers of the
      court, victim assistance coordinators, victims’ advocates, . . . jurors,
      newspaper reporters or broadcasters, and court reporters.



                                          5
See generally Presley v. Georgia, 558 U. S. 209, 214-216 (130 SCt 721, 175 LE2d

675) (2010) (trial courts are required to consider alternatives to closure even when

they are not offered by the parties).

      As a preliminary matter, we note that although Alexander testified at the

hearing on his motion for new trial that he told his own counsel that he objected to

this closure, the trial court did not mention this testimony in its order denying the

motion. We are obliged to construe the trial court’s silence on this subject as an

implicit finding that Alexander’s testimony as to it was not credible. See Hughes v.

State, 296 Ga. 744, 747 (1) (770 SE2d 636) (2015) (“where, as here, the trial court

has made extensive findings of fact, we generally must presume that the absence of

a finding of a fact that would tend to undermine the conclusion of the trial court

reflects a considered choice to reject the evidence offered to prove that fact”).

      Even assuming that trial counsel performed deficiently by failing to object to

the exclusion of Alexander’s immediate family from the courtroom, moreover,

Alexander cannot show that he was prejudiced thereby because he cannot show that

there was “a reasonable probability that the trial result would have been different if

not for the deficient performance.” (Citation and punctuation omitted.) Reid v. State,

286 Ga. 484, 485-486 (690 SE2d 177) (2010). Specifically, “[t]he improper closing

                                          6
of a courtroom is a structural error requiring reversal only if the defendant properly

objected at trial and raised the issue on direct appeal[.]” (Citation omitted.) Id. at 488

(2) (c). “[W]here, as here, the issue of a courtroom closure is raised in the context of

an ineffective assistance of counsel claim, prejudice will not be presumed.” (Citation

omitted.) Id. Here, Alexander has not demonstrated any “reasonable probability that

the outcome of the trial would have been different had spectators remained in the

courtroom during such testimony.” Id. Thus the trial court did not err when it denied

Alexander’s motion for new trial on this ground. Id. at 489 (2) (c).

      (b) The record shows that when the mother defended her daughters’

truthfulness during her cross-examination, Alexander’s trial counsel impeached the

mother by introducing her written recantation, which was the centerpiece of his

defense. This strategy was objectively reasonable, and trial counsel did not perform

deficiently in implementing it by choosing cross-examination over a bolstering

objection. Damerow v. State, 310 Ga. App. 530, 538 (4) (a) (ii) (714 SE2d 82) (2011)

(trial counsel’s strategic decision to cross-examine a victim’s mother in accordance

with the defense’s strategy “was not patently unreasonable”).

      (c) The record shows that the trial court originally instructed the jury that they

were “entitled to consider the alleged victims’ out-of-court statements as substantive

                                            7
evidence of the defendant’s guilt.” Trial counsel objected to this portion of the charge

on the ground that it was incomplete without the additional instruction that the jury

should also consider any inconsistent statements by the victims. The trial court then

recharged the jury that it could consider not only the victims’ out-of-court statements,

but also “a witness’s inconsistent statements as [they] may relate to the defendant’s

innocence.” Alexander did not object to the recharge.

      Although Alexander now complains that the recharge failed to specify that the

term “witness” included the victims in this case, the victims and their interviewers

were available for cross-examination, and there was no reasonable possibility that the

jury could have been misled by the recharge, which stated the law accurately. See

OCGA § 24-8-820 (a) (authorizing the admission of a child victim’s hearsay

statements if notice is given, “such child testifies at the trial,” and “the person to

whom the child made such statement is subject to cross-examination”); Latta v. State,

341 Ga. App. 696, 703 (3) (802 SE2d 264) (2017) (a victim’s out-of-court statement

“does not require a showing” of reliability, and “statements admissible under the child

hearsay statute do not need to meet the admissibility requirements for prior consistent

statements”). There was no deficient performance here. See id. at 705 (5) (b)

(pretermitting whether a former pattern charge’s language was “a more precise or

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comprehensive statement of the law than the current pattern charge,” a defendant had

not shown deficient performance in requesting the current charge concerning a

victim’s prior inconsistent statements).

      (d) Although Alexander also complains that trial counsel was deficient in

failing to refute the State expert’s testimony that the DNA found in the younger

victim’s vagina was from semen, we have pointed out that Alexander’s strategy was

to argue that the victims had obtained a used condom and planted this evidence

themselves. There was no deficient performance in choosing this strategy over one

consisting of contesting the expert’s opinion as to the DNA’s origin. See Dority v.

State, 335 Ga. App. 83, 105 (4) (h) (780 SE2d 129) (2015) (when counsel could show

that an expert’s testimony was consistent with defendant’s innocence, a decision not

to refute that testimony with other testimony was not ineffective).

      Judgment affirmed. Reese, P. J., and Markle, J., concur.




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