                              FIRST DIVISION
                              BARNES, P. J.,
                          MERCIER and BROWN, 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


                                                                    August 6, 2019




In the Court of Appeals of Georgia
 A19A1499. SANCHIOUS v. THE STATE.

      BROWN, Judge.

      A jury found Christopher Sanchious guilty of three counts of aggravated child

molestation, two counts of child molestation, and one count each of aggravated

sodomy and sexual battery involving his girlfriend’s twelve-year-old daughter.1

Sanchious appeals his convictions and the denial of his amended motion for new trial,

challenging the trial court’s admission of scientific reports and testimony regarding

the analysis of one of those reports, and trial counsel’s effectiveness. We affirm for

the reasons set forth below.

      1
         The jury acquitted Sanchious of other charges of rape, statutory rape,
aggravated sodomy, aggravated child molestation, and tampering with evidence. The
trial court merged two of the aggravated child molestation counts into the aggravated
sodomy count, one child molestation count into the aggravated child molestation
count, and the sexual battery count into the remaining child molestation count.
      “Following a criminal conviction, the defendant is no longer presumed

innocent, and we view the evidence in the light most favorable to sustain the verdict.”

(Citation omitted.) Robinson v. State, 342 Ga. App. 624, 625 (805 SE2d 103) (2017).

So viewed, the evidence showed that Sanchious lived with the victim, the victim’s

mother, and the victim’s brother and sister. On October 14, 2014, the victim was

asleep in a bedroom of her home on top of a red comforter, when Sanchious came in,

pulled down the victim’s “night pants,” and “put his penis in [her] butt.” She felt

something “going in and out of her butthole” and said her pants smelled like “sour

milk” when Sanchious was done. The victim went to the bathroom afterward and

noticed that her pants were wet and that “the wet look[ed] [w]hite.” The victim was

afraid to tell her mother in person, so she wrote a note and left it on the ironing board

telling her mother that she “can’t take it anymore” and that Sanchious “need[s] to

leave” because “he is put[t]ing his hand[s] on [her] the wrong way . . . [and she]

think[s] that is called rape.” At the end of the note, the victim wrote “help me”

because she was scared it might happen again. The mother did not see the note until

later that evening when the victim handed it to her. The mother confronted Sanchious

and he denied touching the victim. The mother took the victim to the hospital and

then to police. The mother reported to police that Sanchious “anal[ly] penetrat[ed]”

                                           2
the victim, after which the victim underwent a forensic medical exam. In addition to

anal penetration, the victim testified at trial that in the summer of that same year,

Sanchious licked her vagina. During the forensic medical exam, the victim reported

the anal penetration and also advised medical personnel that Sanchious placed his

penis in her vagina and her mouth, and put his finger in her vagina. During the

forensic interview, the victim reported all of the above and also stated that Sanchious

put his finger down her pants and touched her vagina outside of her underwear. She

also reported that in September of the same year, he put his penis in her vagina.

      The victim’s younger sister testified at trial that sometime in October 2014, the

victim told her that Sanchious was doing “stuff to [the victim] while she was asleep”

on the floor of the sister’s room. The sister stated that the victim was sleeping on top

of a purple cover and under a red cover that had been given to the sister by her

godmother. The sister never saw anything because she was asleep and told the victim

to tell their mother immediately and “she will handle it.”

      The medical exam of the victim conducted in the early morning hours of

October 16, 2014, along with the administration of a sexual assault kit, revealed a

“healed tear” to her hymen, swelling in her vagina, and a recent abrasion, or bruising

on the cervix, all consistent with “insertion of a penis.” The exam also revealed a

                                           3
recent injury to the victim’s anus, one tear at the top and another toward the bottom,

consistent with insertion of a penis. The nurse who conducted the exam testified that

the victim had what appeared to be seminal fluid in her anus. The nurse handed over

to police both the sexual assault kit and the victim’s panties.

      Sometime after 1:00 a.m. on October 16, 2014, and following the medical

exam, officers accompanied the victim and her mother back to their home where they

discovered Sanchious asleep in the mother’s bed. Officers recovered two comforters

from the victim’s sister’s room, one red and one purple, as well as the victim’s night

pants, which were warm from having just been “run through” the dryer because

Sanchious had been doing laundry. Police collected a saliva sample from Sanchious,

and sent the following items to the GBI for testing: the purple comforter; cuttings

from the red comforter; the victim’s panties; and the sexual assault kit.

      A GBI serologist testified that the victim’s panties tested positive for seminal

fluid, and that a cutting from the red comforter tested positive for sperm and seminal

fluid. Both items were sent for DNA testing. The serologist testified that it was

unlikely for fluid to be detected on something that had been washed.

      A GBI forensic biologist testified at trial about the DNA testing performed on

the victim’s sexual assault kit, her panties, and the cuttings from the red comforter.

                                          4
She explained that as part of her duties at the GBI, she conducts DNA testing, but

also performs peer reviews of DNA typing analysis reports, meaning that she

“examine[s] all the notes and results in the report of an analyst, and [that she has] to

come to the same conclusions.” The purpose of peer review is “[t]o ensure that the

analyst has followed policies and procedures, and that the results are correct and

reliable” with the peer reviewer “actually evaluat[ing] the [analyst’s] conclusion, or

the steps taken to reach that conclusion.” The forensic biologist testified that she

personally tested the sexual assault kit in this case, but that another analyst tested the

panties and red comforter subject to her peer review. The sexual assault kit tested

negative for the presence of male DNA, while the comforter contained the DNA

profiles of the victim and Sanchious. The panties also tested positive for the presence

of DNA, and contained the DNA profiles of three individuals, including the victim,

Sanchious, and an unknown person. One fraction of the DNA extracted from the

panties came from sperm cells and a second came from non-sperm cells. The DNA

of the unknown person and the victim were both located in the non-sperm cells, while

Sanchious’ DNA was found in the “sperm fraction.” The forensic biologist testified

that “[t]he frequency, or the statistic, of the DNA markers shared between . . .

Sanchious and the DNA obtained . . . from the panties and the cutting recovered from

                                            5
the comforter is approximately one in one hundred quadrillion in the African

American population, and one in five hundred quadrillion in the Caucasian

population.” The forensic biologist concluded with “reasonable scientific certainty”

that the DNA obtained from the panties and the comforter matched Sanchious or his

identical twin, and testified that the analyst’s “testing was done and followed

according to policy and procedure.” The trial court allowed the State to admit into

evidence the forensic biologist’s DNA report on the sexual assault kit (State’s Exhibit

22), as well as the analyst’s DNA report on the panties and the comforter (State’s

Exhibit 24). On cross-examination, the forensic biologist confirmed that she reviews

the possibility of secondary transfer. Defense counsel also questioned the forensic

biologist about the notes and data compiled by the analyst during her testing, and

submitted those materials into evidence.

      Sanchious testified at trial, denying that he ever touched the victim

inappropriately. Sanchious could not explain why his semen was on the victim’s

panties, and claimed that the red comforter on which his semen was found was the

comforter under which he and the victim’s mother slept and had sex. The victim’s

mother testified that the red comforter was never on her bed or in her bedroom, and

that she never had sex on or under the red comforter; it was in the victim’s sister’s

                                           6
room and was a gift from a friend. On cross-examination, the mother clarified that her

children would sometimes bring the red comforter into her room, place it on her bed,

lay on the comforter, and then take it out of the room, but the children never left the

blanket in her room permanently.

      1. In two related enumerations, Sanchious contends that the trial court erred by

allowing the forensic biologist to testify about the DNA testing performed by the

analyst who was not available at trial, and in admitting the DNA report prepared by

the unavailable analyst. During trial, Sanchious objected to both on grounds of

hearsay; he alleges the same on appeal. “We . . . review the trial court’s ruling on the

admissibility of this evidence for abuse of discretion.” Carter v. State, 302 Ga. 200,

202 (2) (805 SE2d 839) (2017).

      (a) Testimony. In Bullcoming v. New Mexico, 564 U. S. 647 (131 SCt 2705, 180

LE2d 610) (2011), the United States Supreme Court addressed whether the

prosecution may introduce into evidence a forensic laboratory report via the

“surrogate testimony” of an analyst who did not sign the certification or personally

conduct or observe the performance of the test reported in the certified lab report

prepared by another analyst, and ruled that “it may not be introduced against the

accused at trial unless the witness who made the statement is unavailable and the

                                           7
accused has had a prior opportunity to confront that witness.” Id. at 657 (I) (C). See

also Melendez-Diaz v. Massachusetts, 557 U. S. 305, 307 (I), 311 (II) (129 SCt 2527,

174 LE2d 314) (2009) (sworn certificates of state crime lab analysts admitted into

evidence to prove that material seized by police was contraband were testimonial;

thus, defendant’s confrontation rights were violated when the analysts who wrote the

certificates did not testify in person at trial). One year later, in a case challenging the

admissibility of expert testimony, the Supreme Court of Georgia recognized the

holding in Bullcoming, but ruled that Bullcoming does not compel the exclusion of

testimony from a substitute witness who “is a supervisor, reviewer, or someone else

with a personal, albeit limited, connection to the scientific test at issue.” (Punctuation

and citation omitted; emphasis supplied.) Disharoon v. State, 291 Ga. 45, 48 (727

SE2d 465) (2012). See also Leger v. State, 291 Ga. 584, 592 (5) (732 SE2d 53)

(2012) (scientist who did not personally perform DNA tests, but supervised worker

who did, interpreted worker’s results, and wrote lab report could testify at trial);

Thomas v. State, 342 Ga. App. 310, 314 (2) (803 SE2d 131) (2017) (second chemist

who did not personally perform drug identification tests, but reached an independent

conclusion and interpreted procedures and analysis performed by first chemist who

was unavailable to testify at trial, could testify at trial); Estrada v. State, 319 Ga. App.

                                             8
762, 765-766 (3) (738 SE2d 344) (2013) (analyst who performed lab testing was

unavailable, but supervisor could testify because he had reviewed analyst’s work to

determine whether it had been performed correctly and whether he agreed with it).

Indeed, Georgia courts “have consistently held that the Confrontation Clause does not

require the analyst who actually completed the forensic testing used against a

defendant to testify at trial.” (Citation and punctuation omitted.) Leger, 291 Ga. at

592 (5).

      In this case, the forensic biologist testified about the DNA report she prepared

on the sexual assault kit and confirmed that she participated in the preparation of the

DNA report on the other tested items, which was prepared by a second analyst. As set

out above, the forensic biologist explained that she conducted a peer review of the

second analyst’s report to ensure that the analyst followed policies and procedures,

examined the analyst’s notes and results, evaluated the steps taken by the second

analyst to reach her conclusion, and reached an independent conclusion. The forensic

biologist explained how a conclusion was reached for the DNA profiles on the items

tested, and testified that if something had been wrong with the analyst’s notes, the

DNA report would not have been released. During cross examination, defense

counsel submitted into evidence the notes and data relied on by the analyst and

                                          9
forensic biologist in reaching their independent conclusions, and questioned the

forensic biologist about those materials. Given these circumstances, we do not find

the forensic biologist’s testimony to be the sort of “surrogate testimony” inadmissible

under Bullcoming. See Thomas, 342 Ga. App. at 314.

      (b) Report. Because the analyst’s DNA report (State’s Exhibit 24) was

cumulative of the forensic biologist’s properly admitted testimony, its admission was

harmless and we find no merit in Sanchious’ challenge in this regard. See Brown v.

State, 288 Ga. 404, 408 (3) (703 SE2d 624) (2010) (admission of hearsay is harmless

where it is cumulative of other properly-admitted evidence); Dennis v. State, 158 Ga.

App. 142, 144 (4) (279 SE2d 275) (1981) (same).

      2. Sanchious contends that he received ineffective assistance of counsel at trial,

asserting that his trial counsel’s performance was deficient in a number of ways. As

an initial matter, we note that Sanchious has asserted what appears to be sub-

categories within his enumeration of error regarding ineffective assistance of counsel.

These subcategories concern the trial court’s error in admitting the evidence, failing

to give a limiting instruction, and sending the DNA report out with the jury during

their deliberations. An examination of his arguments within each of these sub-

categories, however, show that he attempts to relate each to ineffective assistance of

                                          10
counsel. We will therefore consider them only in the context of an ineffective

assistance of counsel claim.

      In order to succeed on this claim, Sanchious

      must prove both that his trial counsel’s performance was deficient and
      that there is a reasonable probability that the trial result would have been
      different if not for the deficient performance. Strickland v. Washington,
      466 U. S. 668 (104 SCT 2052, 80 LE2d 674) (1984). If an appellant fails
      to meet his burden of proving either prong of the Strickland test, the
      reviewing court does not have to examine the other prong. Id. at 697
      (IV). In reviewing the trial court’s decision, 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.) Baugh v. State, 293 Ga. 52, 54 (2) (743 SE2d

407) (2013). “There is a strong presumption that the performance of trial counsel falls

within the wide range of reasonable professional assistance. The reasonableness of

the conduct is viewed at the time of trial and under the circumstances of the case.”

(Citation, punctuation, and footnote omitted.) Walker v. State, 329 Ga. App. 369, 373

(3) (765 SE2d 599) (2014). “Moreover, a tactical or strategic decision made by

counsel cannot form a basis for ineffective assistance of counsel unless it was so

patently unreasonable that no competent attorney would have chosen it.” (Citation


                                          11
and punctuation omitted.) McNair v. State, 296 Ga. 181, 183 (2) (766 SE2d 45)

(2014).

      (a) Sanchious first asserts that his trial counsel was ineffective for failing to

articulate all of the applicable objections to the admission of the forensic biologist’s

testimony and the analyst’s DNA report (State’s Exhibit 24). In this regard, Sanchious

argues that the report and the testimony constituted inadmissible hearsay and violated

his right of confrontation because the forensic biologist did not actually conduct the

DNA testing on the panties and the comforter. Sanchious’ claim of ineffectiveness in

this regard fails for several reasons.

      First, as set out above, trial counsel did object on grounds of hearsay. Thus,

Sanchious’ claim that trial counsel was ineffective for failing to object on this ground

fails. Second, as explained in Division 1, supra, the evidence was not inadmissible

“surrogate testimony.” See Disharoon, 291 Ga. at 48. It follows then, that Sanchious’

confrontation rights were not violated. Therefore, trial counsel’s failure to object on

this ground did not amount to ineffective assistance of counsel. See Naji v. State, 300

Ga. 659, 664 (3) (797 SE2d 916) (2017) (where testimony was ruled admissible, “trial

counsel’s failure to make a meritless objection cannot constitute evidence of

ineffective assistance”) (citation and punctuation omitted).

                                          12
      Third, trial counsel specifically testified that he strategically chose to allow

admission of the report, waiving any objection to it going out with the jury during

deliberations, because it supported his theory of DNA transfer. During the motion for

new trial hearing, the State questioned trial counsel about this strategy as follows:

      [State]: Going into this trial you did have a strategy, correct?
      [Counsel]: Yes.
      [State]: Did part of that strategy involve the information that there were three
      DNA profiles on the underwear?
      [Counsel]: Yes.
      [State]: And did part of that strategy involve suggesting that there may be
      another reason for those three DNA profiles to be on evidence?
      [Counsel]: Yes.
      [State]: In fact, did that strategy assume that there was some exculpatory nature
      to the fact that there were three DNA profiles on that evidence?
      [Counsel]: Yes.
      [State]: Okay. Did some of the facts that — did that theory that there were the
      three DNA profiles tending to exonerate this defendant, was that part of the
      reason that you decided that the jury should see the reports?
      [Counsel]: Yes.
      [State]: Is that why you in fact, you rather than the State[,] were the first to
      suggest the reports go back to the jury?
      [Counsel]: Yes.
      [State]: So it was actually a strategic decision on your part to do that?
      [Counsel]: Yes.
      ...

      [State]: And in fact you wanted Exhibits 22 through 24 to back with the jury
      because they advanced your transfer theory and your theory of the three, the
      three DNA profiles?
      [Counsel]: Correct.
      [State]: So that was actually part of your trial strategy to allow that?

                                         13
      [Counsel]: Yes.
      [State]: Okay. So while you would prefer that no DNA evidence came in, once
      the [c]ourt overruled your objection it was helpful for the jurors to view that,
      in your opinion?
      [Counsel]: Yes.
      [State]: And in fact, you did get multiple acquittals on this case as well; is that
      correct?
      [Counsel]: Correct.
      [State]: The defendant was actually acquitted of five counts; is that correct?
      [Counsel]: Correct.

“Trial tactics and strategy, no matter how mistaken in hindsight, are almost never

adequate grounds for finding trial counsel ineffective unless they are so patently

unreasonable that no competent attorney would have chosen them.” (Citation and

punctuation omitted.) McNair, 296 Ga. at 184 (2) (b). Here, Sanchious has not shown

that trial counsel’s decision with regard to the DNA evidence was patently

unreasonable and a decision that no competent attorney would have made. In fact, on

appeal — and during the motion for new trial hearing — Sanchious further advances

trial counsel’s DNA transfer strategy by suggesting that counsel should have hired

an expert to explain DNA transfer. See infra, Division 2 (d). Further, the admission

of the evidence could not have created a reasonable probability that the outcome of

the trial would have been different in light of the victim’s testimony at trial and the

medical evidence of the victim’s injuries which were consistent with her version of


                                          14
events. We find no merit in Sanchious’ claim that counsel was ineffective for failing

to articulate all of the applicable objections to the admission of the forensic

biologist’s testimony and the analyst’s DNA report.

      In a related allegation, Sanchious claims that his trial counsel was ineffective

for failing to point out to the trial court that the facts and data underlying the report

should have been excluded by the balancing test of OCGA § 24-7-703 because their

probative value was substantially outweighed by their prejudicial effect. We find this

argument meritless because it flies in the face of trial counsel’s trial strategy. As set

out above, trial counsel tendered the notes and data underlying the report during his

cross examination of the forensic biologist and also testified during the motion for

new trial hearing that he made the strategic decision to send the documents back with

the jury because they helped to advance Sanchious’ theory of the case, i.e., DNA

transfer. “[A]s a matter of law, strategic decisions do not amount to ineffective

assistance of counsel.” Sanders v. State, 253 Ga. App. 380, 381 (559 SE2d 122)

(2002).

      (b) Sanchious next asserts that his trial counsel was ineffective for failing to

request a limiting instruction explaining to the jury that the testimony and the report

could not be relied upon as substantive evidence. Because the evidence was not

                                           15
inadmissible, however, a limiting instruction was not required. See Kitchens v. State,

235 Ga. App. 349, 352 (1) (509 SE2d 391) (1998) (because co-conspirators’

statements were admissible under hearsay exception and directly relevant to charges

for which defendants were on trial, limiting instruction was not necessary). It follows

that “trial counsel cannot be faulted for not requesting a jury charge which was not

authorized.” Moore v. State, 278 Ga. 397, 400 (2) (b) (603 SE2d 228) (2004). In any

event, we note that the trial court charged the jury that it was “not required to accept

the testimony of any witness, expert or otherwise. The testimony of an expert, like

that of all witnesses, is to be given only such weight and credit as you think it is

properly entitled to receive.”

      (c) Sanchious next asserts that his trial counsel was ineffective for allowing the

DNA report to go back with the jury and agreeing to waive any continuing witness

objection. Sanchious contends that since the report was inadmissible, the jury should

not have been permitted to consider it during deliberations. According to Sanchious,

by waiving the continuing witness objection, trial counsel unintentionally and

ineffectively waived his previous hearsay objection. As ruled above, however, the

report was cumulative of the forensic biologist’s testimony. But, even if it was not,



                                          16
as explained in Division 2 (a), supra, trial counsel’s decision in this regard constituted

reasonable trial strategy, and therefore, was not ineffective assistance.

      (d) Sanchious last asserts that his trial counsel was ineffective for failing to call

a DNA expert to testify about DNA transfer, Sanchious’ sole defense. “The decision

on whether to call an expert witness is one of trial strategy, and we will not find

ineffectiveness if counsel’s strategy and tactics were reasonable at the time.”

Bharadia v. State, 282 Ga. App. 556, 559 (6) (a) (639 SE2d 545) (2006).

      At the motion for new trial hearing, Sanchious called an expert in forensic

DNA analysis to testify. The expert testified that it is possible for DNA and bodily

fluids to be transferred from one item of clothing to another. As for whether bodily

fluids and DNA can be transferred in the washing machine, the expert testified that

“studies have shown that spermatozoa can be picked up on items that were otherwise

clean.” While the expert opined that it is possible that the serological findings on the

comforter could have resulted from the transfer of Sanchious’ seminal fluid from

another article of clothing, the expert conceded that it was also possible that

Sanchious’ seminal fluid on the victim’s panties resulted from “the way that the

victim said it was done.” The expert testified that there was a small amount of seminal

fluid on the underwear, and “very little sperm” on the comforter. The expert testified

                                           17
that based on what she had been told by appellate counsel about the laundry in the

victim’s house, it is possible that the victim put on the mother’s dirty underwear

which would explain the three DNA profiles identified on the victim’s panties.

      When trial counsel testified at the motion for new trial hearing, he explained

his defense theory of transferred DNA, and confirmed that he was aware of the

possibility that semen can remain on an article of clothing even after it has been

washed and/or that it can transfer to other articles of clothing. Trial counsel did not

consider hiring an expert because he succeeding in getting several of the State’s

witnesses to admit on cross examination that transfer was a possibility. He further

explained that: “In my thinking I guess the theory of transfer is so basic that I would

not need an expert to determine and explain [it]. I don’t know what the expert would

have added to that that I could not have gotten out either through witness testimony

or through the experts that were there.” He also asked the defendant about the

possibility of transfer during direct examination and was otherwise able to advance

the theory when the mother admitted that the children sometimes brought the

comforter into her room and lay it on her bed. While he argued in closing that the

DNA transferred from the comforter after it was in the mother’s bedroom to the

children’s bedroom, counsel explained that he could not “explain away” the mother’s

                                          18
testimony that the comforter was never in the bed when she had sex with Sanchious.

At the conclusion of his testimony, trial counsel noted that after listening to the

testimony of the proffered DNA expert, he did not believe an expert would have made

much of a difference at trial.

      The record shows that trial counsel questioned the forensic biologist about the

possibility of DNA transfer, and confirmed with the GBI serologist that there is no

test to determine “how, when or where” the seminal fluid or semen was placed on the

evidence being tested. He also implied from questioning of the victim’s mother that

DNA could have transferred from the bed where she had sex with Sanchious to the

red comforter that her children sometimes laid on the bed. Finally, Sanchious himself

testified that he and the victim’s mother had sex in many rooms of the home, that the

red comforter came from the bed on which he slept with the victim’s mother, and that

the family had been without a washing machine for three weeks and that clothes had

piled up as a result. In this case, the theory of DNA transfer was effectively drawn out

in the cross-examination of the witnesses and in the questioning of Sanchious, and

during closing arguments according to trial counsel’s testimony during the motion for

new trial. Consistent with the forensic biologist’s testimony at trial, the expert

confirmed that transfer was a possibility, but conceded the ultimate conclusion, that

                                          19
Sanchious’ DNA was present on the victim’s panties because Sanchious ejaculated

after anally penetrating the victim. Because Sanchious has failed to show that the

proffered expert’s testimony was any different or more favorable than the testimony

defense counsel elicited from the witnesses at trial, he cannot establish that his

defense was prejudiced by counsel’s failure to call the expert. Accordingly, his claim

of ineffective assistance fails. See, e.g., Stripling v. State, 304 Ga. 131, 139 (3) (816

SE2d 663) (2018); Cobb v. State, 348 Ga. App. 210, 215 (2) (b) (820 SE2d 241)

(2018) (failure to call expert witness not deficient performance where trial counsel

obtained on cross-examination information similar to that proffered by the expert).2

      Judgment affirmed. Barnes, P. J., and Mercier, J., concur.




      2
         In reaching our conclusion that Sanchious’ trial counsel did not render
ineffective assistance, we note further that his acquittal on the charges of rape,
statutory rape, aggravated sodomy, aggravated child molestation, and tampering with
evidence “is a relevant factor which strongly supports the conclusion that the
assistance rendered by the attorney fell within that broad range of reasonably
effective assistance.” (Citations and punctuation omitted.) Moon v. State, 288 Ga.
508, 516 (9) (705 SE2d 649) (2011).

                                           20
