ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Rashaad Byrd was tried by a jury and convicted of aggravated
child molestation,  child molestation,  and statutory
rape. More than five years after the trial court
entered judgment on the verdict, it granted Byrd's motion
for new trial on the general grounds. The State appeals from that
decision. For the following reasons, we affirm.
evidence presented at trial showed the following. In August
2008, the 12 year old victim went with her
cousin to Byrd's residence. At the time, Byrd
was 21 years old. The victim's cousin asked Byrd if he
wanted to have sex with the victim and after he responded
affirmatively, she asked the victim if she wanted to have sex
with Byrd. After indicating that she did want to have sex
with Byrd, the victim went with Byrd into his bedroom. The
victim testified that, while in his bedroom, Byrd performed
oral sex on her and they engaged in sexual intercourse.
victim's cousin observed that the victim and Byrd were in
his bedroom for approximately 10 to 15 minutes. Later in the
day, the victim told her cousin that she and Byrd had
"messed around, " which the cousin understood to
mean that the two had sex.
couple of months later, the victim's mother feared that
the victim might be pregnant. After asking the victim if she
had sex with anyone, the victim admitted that she had had sex
with Byrd. The victim's mother called the police. The
victim was taken to a child advocacy center, where a forensic
interviewer conducted a recorded interview of her. During the
interview, the victim admitted that she had sex with Byrd. A
copy of this recorded interview was published to the jury.
investigator with the Asburn Police Department conducted a
recorded interview of Byrd. Byrd confessed to performing oral
sex on the victim and engaging in sexual intercourse with
her. Additionally, Byrd wrote a statement detailing his
interaction with the victim. Both the recorded interview and
the written statement were published to the jury. However, at
trial, Byrd denied having any sexual relations with the
victim. Byrd testified that he confessed out of
"fear" of going to prison and that he felt
"pressured" to write the statement.
his convictions,  Byrd filed a timely motion for new trial
asserting the general grounds. Later, Byrd filed an amended
motion for new trial seeking additional grounds for relief.
Following a hearing, the trial court granted Byrd's
motion for new trial on the general grounds.
State contends that Byrd waived his right to a new trial
based on the general grounds. Specifically, the State argues
that because Byrd failed to address the general grounds
during the hearing on his motion for new trial or in his
brief to the trial court following the hearing, he waived
them. We disagree.
context of a motion for new trial, grounds for relief must be
raised "in either [the] motion for new trial
or at the hearing on the motion for new trial."
Jones v. State, 272 Ga.App. 563 (2) (a) (612 S.E.2d
852) (2005) (emphasis supplied). Byrd expressly raised the
general grounds in his first motion for new trial.
Additionally, in his amended motion for new trial Byrd asked
that "[the] amended motion and the original motion which
it amends be inquired into." The State argues that Byrd
affirmatively abandoned this argument because at the hearing
on the motion for new trial, his counsel indicated that he
would brief "a couple of issues, "and yet the brief
did not mention the general grounds. However, these actions
do not amount to an express waiver.
did not waive or abandon his claims under OCGA §§
5-5-20 and 5-5-21, which were predicated upon the already
existing trial record, by not separately raising those claims
in an evidentiary hearing where the focus was upon his
ineffective assistance claim." (Citations omitted.)
Hartley v. State, 299 Ga.App. 534, 541 (3) (683
S.E.2d 109) (2009). Nor did he waive or abandon his claims by
failing to raise them in his brief following the evidentiary
hearing. Accordingly, we find that Byrd did not waive his
right to have a new trial granted on the general grounds. See
State contends that the trial court erred by granting
Byrd's motion for new trial. Specifically, the State
argues that the trial court abused its discretion because the
evidence of Byrd's guilt was overwhelming and demanded
the jury's verdict.
a matter of constitutional due process, the evidence
presented at trial and summarized above was, when viewed in
the light most favorable to the verdicts, legally sufficient
to authorize a rational jury to . . . find [Byrd] guilty
beyond a reasonable doubt of the crimes for which [he] was
convicted." (Citations omitted.) State v.
Hamilton, 299 Ga. 667, 670 (2) (791 S.E.2d 51) (2016).
See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979); see also Sanders v.
State, 308 Ga.App. 303, 304 (1) (a) (707 S.E.2d 538)
(2011), overruled in part on unrelated grounds by
Washington v. State, 310 Ga.App. 775, 781-782 (7)
(714 S.E.2d 364) (2011) (affirming appellant's aggravated
child molestation conviction where victim testified that
appellant performed oral sodomy on her); Collins v.
State, 269 Ga.App. 381, 382 (1) (b) (604 S.E.2d 240)
(2004) (where this Court found the evidence sufficient to
convict appellant of child molestation when appellant gave a
statement to police that he "put his penis" inside
the victim); Trejo v. State, 245 Ga.App. 316, 317
(2) (537 S.E.2d 755) (2000) (evidence sufficient to sustain
statutory rape conviction where victim testified about the
incident and the defendant admitted to police that he had
sexual intercourse with the victim).
the fact that the evidence is legally sufficient to sustain
Byrd's convictions does not prohibit the trial court from
exercising its discretion to grant a new trial under ...