DILLARD, C. J., RAY, P. J. and SELF, J.
a jury trial, Shelton Bradley was found guilty of aggravated
child molestation, rape, and incest for sexually abusing his
15-year-old stepdaughter. Bradley appeals the denial of his
motion for new trial, contending that the trial court erred
by not answering a question from the jury and by commenting
on the credibility of the victim. He also alleges ineffective
assistance of counsel. For the reasons set forth below, we
affirm Bradley's convictions but remand for his claim
that counsel was ineffective for failing to present evidence
that DNA recovered from the victim was male DNA that did not
in the light most favorable to the jury's verdict,
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979), the evidence adduced at trial shows that
on the evening of December 10, 2007, Q. H. was watching
television in the den of her family's home when Bradley
took her into the laundry room and asked if he could touch
her. When Q. H. refused, Bradley pulled down her pants and
licked her vagina. Q. H. ran to the bedroom she shared with
her sister and locked the door. Bradley knocked on the door
and told Q. H. to come out because he wanted to talk to her.
When Q. H. left the bedroom, Bradley took her into the den
where he forced her to have sex with him. Following the
incident, Bradley took Q. H. into the bathroom, at which
point Bradley removed the condom he had used and put it in
the sink. Bradley told Q. H. that if she said anything, he
would hurt her mother.
H.'s brother helped her escape with her sister through a
bedroom window and the two girls ran to a neighbor's
house. The neighbor testified that Q. H. and her sister came
into her house screaming and crying and told her that Bradley
had sex with Q. H. Q. H. also told the neighbor that Bradley
left a condom in the bathroom sink. The neighbor called the
police. A physical examination conducted at The Haven Rape
Crisis Center showed an abrasion of the labia consistent with
friction, such as forced sexual intercourse.
arrested Bradley that night, and during a walk-through of the
home, a detective discovered a condom in the sink, a condom
wrapper on the couch in the den, and a tissue with blood on
it in the laundry room. At trial, Q. H. testified that she
lied about the entire incident to get Bradley out of the
house because he was strict and would argue with her mother.
When asked why she did not recant her allegation sooner, Q.
H. testified that she was told that if she changed her story
she would be prosecuted.
Bradley complains that the trial court erred in not answering
a question from the jury about whether
"unconsented" oral sex constitutes rape. In
response, the trial court stated, "I cannot - or none of
us can enter into a general discussion with [you] concerning
these issues." The trial court then recharged the jury
on the definitions of rape and aggravated child molestation
A person commits the offense of rape when he has carnal
knowledge of a female forcibly and against her will. Carnal
knowledge in rape occurs when there is any penetration of a
female sex organ with a male sex organ. The law of Georgia
provides that a person not married to the defendant under the
age of 16 is legally incapable of giving consent to sexual
intercourse. This means such act would be against the will of
the victim. . . .
A person commits the offense of aggravated child molestation
when that person does an immoral or indecent act to a child
less than 16 years of age with the intent to arouse or
satisfy the sexual desires of the person and the act involves
the act of sodomy. The act of sodomy is defined as performing
or submitting to a sexual act involving the sex organs of one
and the mouth or anus of another. The State must also prove
beyond a reasonable doubt that the child was under the age of
16 at the time of any such act.
asked the trial court to read the rape charge one more time
and the court acquiesced. The jury then asked if there is a
difference between statutory rape and rape to which the trial
court responded: "Legally there is of the definition,
but [you] are not concerned with statutory rape. That's
not one of the issues for [you] to consider in this
case." Bradley did not object.
Initially, it is important to note that [Bradley] did not
object to any portion of the trial court's jury charges,
and under OCGA § 17-8-58, "any party who objects to
any portion of the charge to the jury or the failure to
charge the jury shall inform the court of the specific
objection and the grounds for such objection before the jury
retires to deliberate." And the failure to so object
precludes appellate review of such portion of the jury
charge, unless such portion of the jury charge constitutes
plain error. . . .
(Citations, punctuation and footnotes omitted.) Wheeler
v. State, 327 Ga.App. 313, 318 (3) (758 S.E.2d 840)
(2014). "[P]lain error . . . will only be found if the
jury instruction was erroneous; the error was obvious; the
instruction likely affected the outcome of the proceedings;
and the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings." (Citation
and punctuation omitted.) Tran v. State, 340 Ga.App.
546, 548 (1) (798 S.E.2d 71) (2017). Because Bradley failed
to object, our review is limited to whether the trial
court's response constituted plain error. See Redding
v. State, 296 Ga. 471, 473 (2) (769 S.E.2d 67) (2015).
contends the exchange between the trial court and the jury
proves the jury was confused about the rape charge and likely
convicted Bradley of rape based on conduct that did not
constitute rape. He further argues that the trial court
committed plain error by not answering the jury's
question with a simple "no." "The trial court
had discretion to decline to answer the jury's question
directly. We have never held that the court must engage in a
question and answer session with the jury or instruct the
jurors individually on how to apply the law to the
facts." (Punctuation omitted.) Redding, 296 Ga.
at 473 (2). In this case, the trial court sought to avoid any
"problematic situation" by recharging the jury on
rape and aggravated child molestation, which
effectively answered the question posed. See id. The
trial court's recharge specifically instructed the jury
that rape involves the penetration of a female sex organ with
a male sex organ and that aggravated child molestation
involves the sex organs of one and the mouth or anus of
another. We conclude that the trial court's decision to
answer the jury's question by recharging on rape and
aggravated child molestation does not amount to plain error,
was not obviously erroneous, and likely did not affect the
outcome of the proceeding.
Bradley contends that the trial court violated his due
process rights and OCGA § 17-8-57 by commenting on Q.
H.'s credibility and expressing its opinion as to
Bradley's guilt. At the close of the neighbor's
testimony, the following colloquy occurred between the trial
court and the neighbor:
THE COURT: Let me ask a question. We're trying to arrive
at the - reach the truth in this case. Is this the first -
you said a minute ago that you were not that - I'm
rephrasing, okay? This is not exactly what you said, but I
took it that you were not that close or friendly with, or
that well acquainted with the people, or the girls, is that
[NEIGHBOR]: Right, I just knew them because of my kids. My
girls hung with ...