MILLER, Presiding Judge.
Following a jury trial, Earnest Rhodes was convicted of child molestation (OCGA § 16-6-4(a)) and incest (OCGA § 16-6-22). Rhodes appeals from the denial of his motion for new trial, contending that (1) the trial court erred in failing to suppress the DNA evidence; (2) the trial court erred in charging the jury on similar transaction evidence; and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.
"On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Footnote omitted.) Goss v. State, 305 Ga.App. 497, 699 S.E.2d 819 (2010).
So viewed, the evidence shows that the victim was born in 1985. Rhodes married the victim's mother in 1991. When the victim
In 1998, when she was 13 years old, the victim gave birth to a full term baby. The victim subsequently reported that Rhodes had been molesting her and that he was the father of her child. Several years later, a Richmond County Crime Scene Unit investigator obtained a search warrant for DNA buccal swabs from Rhodes for the purposes of DNA comparison and paternity testing. Subsequent DNA testing confirmed that there was a 99.99 percent probability that Rhodes fathered the victim's child. Rhodes was subsequently arrested and indicted for child molestation (OCGA § 16-6-4(a)) and incest (OCGA § 16-6-22).
At trial, the state presented similar transaction evidence
1. Rhodes contends that the trial court erred in denying his motion to suppress the DNA evidence since there was insufficient probable cause to support the warrant to extract buccal swabs from his person for the DNA testing. We disagree.
(Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 78, 673 S.E.2d 237 (2009).
(Citation and punctuation omitted.) Flewelling v. State, 300 Ga.App. 505, 509(2), 685 S.E.2d 758 (2009).
Rhodes argues that the search warrant affidavit was insufficient because it omitted the fact that the victim had previously made inconsistent and contradictory claims regarding who fathered her child, the omitted information was material, and omission of this information was deliberately misleading.
(Citations and punctuation omitted.) Flewelling, supra, 300 Ga.App. at 512(2), 685 S.E.2d 758(b).
Assuming that the omitted information was material, and considering the affidavit as if the information had been included, the magistrate
2. Rhodes contends that the trial court erred in charging the jury on similar transaction evidence. We find no error.
During the sister's testimony regarding similar transactions, the trial court charged the jury that they could consider evidence of Rhodes's similar transactions for the limited purpose of showing his state of mind, knowledge or intent in the charged crimes. The trial court gave a nearly identical instruction in its final jury charge, except that the trial court stated that the jury could consider the similar transaction evidence for the limited purpose of showing Rhodes's bent of mind or course of conduct in the charged crimes. The trial court's initial and final similar transaction charges were taken nearly verbatim from the pattern charge on similar transaction which both the State and Rhodes submitted at the beginning of trial.
Rhodes did not object to the trial court's similar transaction charges, however, he belatedly attempted to reserve objections on the record after the trial court sent the jury out for deliberations. "When a party fails to object to a jury charge or the omission of a charge during trial but raises the issue on appeal, this Court reviews the charge for plain error. The proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding." (Citations and punctuation omitted.) Simmons v. State, 291 Ga. 705, 712(9)(b), 733 S.E.2d 280 (2012).
Rhodes failed to show plain error. Contrary to Rhodes' argument, the charge in this case in not virtually identical to the charge in Rivers v. State, 236 Ga.App. 709, 513 S.E.2d 263 (1999). The similar transaction charge in Rivers impermissibly expanded the limited purposes for which similar transaction evidence can be used by informing the jury that it could consider the similar transaction evidence for the "purpose of showing the crimes charged in the case, and in considering an element of the offense charged in the indictment." Id. at 712(1)(b), 513 S.E.2d 263. The charge in this case properly instructed the jury that similar transaction evidence may be considered for the limited purpose of showing the defendant's bent of mind or course of conduct in the charged crimes. See Jordan v. State, 230 Ga.App. 560, 561-562, 497 S.E.2d 48 (1998) (holding that trial court properly charged jury that it could consider similar transaction for limited purpose of showing defendant's state of mind, lustful disposition or course of conduct.)
3. Rhodes contends that his trial counsel was constitutionally deficient.
(Citations and punctuation omitted.) Davenport v. State, 316 Ga.App. 234, 239(3), 729 S.E.2d 442 (2012).
(a) Rhodes contends that his trial counsel was ineffective for failing to properly object to the admissibility of the DNA evidence. We discern no error.
Rhodes argues that trial counsel's objection to the DNA results and conclusions, based on a gap in the chain of custody of the evidence, was incomplete because the buccal swabs were not handled in a routine manner. However, he does not point to any evidence supporting his claim.
"The chain of custody rule concerns itself with fungible evidence. To show a chain of custody adequate to preserve the identity of fungible evidence, the State must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution." (Citations and punctuation omitted.) Hines v. State, 307 Ga.App. 807, 809(2), 706 S.E.2d 156 (2011). Here, the State established the chain of custody of the DNA evidence. The investigator who collected and sealed the buccal swabs ("samples") from the victim, the victim's son and Rhodes, testified that he took the sealed DNA samples to the State crime lab. The investigator identified the samples at trial, and the State admitted the samples into evidence without objection. A forensic biologist from the State crime lab stated that he received the sealed samples. The samples for each individual were submitted in separate envelopes sealed with tamper-proof tape. The envelopes were marked by the agency that collected them, and each envelope received a unique bar code and case number upon arrival at the crime lab. The forensic biologist identified the samples at trial as the sealed samples he received, opened and tested, and he stated that there was no evidence of tampering with the samples. Consequently, there is no evidence to support Rhodes's claim that the DNA evidence was handled in an irregular manner.
Moreover, trial counsel did not testify at the hearing on Rhodes's motion for a new trial. Where trial counsel does not testify at the motion for a new trial hearing, it is extremely difficult to overcome the presumption that his performance was reasonable. See Fields v. State, 311 Ga.App. 528, 530(1), 716 S.E.2d 587 (2011). Because counsel did not testify at the new trial hearing, Rhodes has not over come the presumption that trial counsel's failure to interpose a more complete objection or further objections to the chain of custody of the DNA evidence fell outside the wide range of reasonable professional conduct. See Fields, supra, 311 Ga. App. at 531(1), 716 S.E.2d 587.
(b) Rhodes also contends that trial counsel was deficient for failing to request and receive expert assistance with the State's DNA evidence, and for failing to move for independent testing of the DNA evidence. Again we discern no error.
Notwithstanding Rhodes's argument that he would have been acquitted if trial counsel had requested independent testing of the DNA evidence, he presented no evidence showing that the State's DNA evidence was defective. See Lanier v. State, 288 Ga. 109, 111(3)(a), 702 S.E.2d 141 (2010). Furthermore, the DNA evidence in this case was not the sole link between Rhodes and the crimes at issue. See Williams v. State, 284 Ga. 849, 852(3), 672 S.E.2d 619 (2009). Notably, the victim testified that Rhodes forced her to perform oral sex and had sexual intercourse with her several times per week, and the victim reported that Rhodes had been molesting her and that he was the father of her
Judgment affirmed.
RAY and BRANCH, JJ., concur.