BARNES, P. J., MCMILLIAN and MERCIER, JJ.
2009, David Hardin was indicted on three counts of rape, one
count of statutory rape, one count of incest, one count of
aggravated sexual battery, seventeen counts of child
molestation, and one count of attempt to commit a felony
arising from alleged sexual acts committed against his
stepdaughter, S. H., from the time she was six years old.
Following a jury trial, Hardin was convicted of all three
counts of rape, statutory rape, aggravated sexual battery,
and thirteen counts of child molestation.In Case No.
A17A1558, Hardin appeals the denial of his motion for new
trial, asserting that (1) his sentences for the statutory
rape and child molestation convictions are void and (2) he
received ineffective assistance of counsel.
was tried along with two co-defendants, Shawn Meintz and
Kevin Hicks. In Case No. A17A1668, Meintz was indicted
on one count of rape, one count of aggravated child
molestation, one count of statutory rape, and four counts of
child molestation for his alleged role in the sexual crimes
committed against S. H. The jury convicted him of statutory
rape and three counts of child molestation. In his sole
enumeration of error, Meintz asserts that he received
ineffective assistance of counsel. Hardin and Meintz were
tried jointly, and we have consolidated their appeals for
review. For the reasons that follow, we affirm the
convictions in both cases, but vacate the sentences and
remand the cases for resentencing.
in the light most favorable to the jury's verdict,
evidence shows that, at the time of his arrest, Hardin lived
in a mobile home park in Chickamauga, Georgia with his wife,
S. H., and two other children. An investigator with the
Chickamauga Police Department was conducting a routine patrol
in the mobile home park in October 2008 when he was
approached by residents complaining about improper sexual
conduct occurring in Hardin's home. Through the
subsequent investigation, law enforcement officials
discovered allegations that Hardin had repeatedly molested
his stepdaughter over the past eight years, beginning when
she was six years old. There was also evidence that Hardin
allegedly recruited dozens of men to have sex with S. H.
while he watched and masturbated. Hardin and these other men
also provided S. H. with drugs and alcohol beginning at a
young age and viewed pornography with her.
who was 14 years old at the time the crimes were reported to
police and 15 years old at the time of trial, testified that,
from the time she was approximately six years old, Hardin
began touching her breasts, buttocks, and vagina with his
hands and his penis and that this conduct occurred when they
lived in Tennessee and continued the entire time they lived
in their mobile home in Walker County, Georgia. Hardin also
used various sex toys to assault her. S. H. also testified
that Hardin would bring other men to their home and force her
to have both vaginal and oral sex with them while he watched.
These other men included co-defendants Meintz and Hicks. S.
H. explained that she initially resisted having sex with
Meintz, but Hardin held her down and duct taped her mouth to
prevent her from biting until she eventually got tired of
fighting. S. H. also testified about a friend of hers, B. P.,
who lived in the same mobile home park. S. H. witnessed one
man, Zach Medlin, rape B. P. before Hardin then forced S. H.
to have sex with Medlin. B. P., who also testified at trial,
said that after Medlin raped her, she saw him having sex with
S. H. while Hardin watched.
executing a search warrant at the Hardin home, officers
discovered a variety of pornographic movies and magazines,
and an ultraviolet light revealed numerous semen stains on
the walls, ceiling, and floor of the master
bedroom. The initial investigator later interviewed
Meintz in Chattanooga after he voluntarily agreed to meet,
and Meintz told him that he had helped the Hardins move from
Tennessee into their mobile home in Chickamauga. He admitted
that he had sex with S. H. but claimed it only happened when
the Hardins were still living in Tennessee. However, he also
admitted that S. H. rubbed his penis while he was in Georgia
and that he became aroused. Meintz was later arrested and
interviewed again, and after waiving his Miranda rights, he
reiterated these claims. Although he was 30 years old at the
time, Meintz claimed that he thought of himself as 14 years
old and S. H.'s fiancé.
trial, the State also presented the testimony of Preston
Dennel, one of the men Hardin recruited to have sex with S.
H. while he watched. Dennel, who had previously entered a
guilty plea, testified that he had sex with S. H. because he
felt Hardin would hit S. H. if he refused to have sex with
her. Following the jury's verdicts, the trial court
sentenced Hardin to serve consecutive life sentences on each
of the three counts of rape convictions; twenty years on the
statutory rape count; a consecutive life sentence on the
count of aggravated sexual battery; twenty years to serve on
eleven counts of child molestation, with six of the sentences
to be served concurrently and five to be served
consecutively; and twenty years of probation each on two
counts of child molestation, consecutive to all previous
counts. The trial court sentenced Meintz to serve twenty
years on the statutory rape conviction and a total of sixty
years on the counts of child molestation, with twenty years
to be served concurrently to the count of statutory rape, and
the remaining time to be probated concurrently.
Case No. A17A1558
turn first to Hardin's assertion that he received
ineffective assistance of trial counsel. To prevail on this
claim, Hardin "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."
(Citation omitted.) Brewer v. State, 301 Ga. 819,
821 (3) (804 S.E.2d 410) (2017). To prove deficient
performance, an appellant "must show that his attorney
performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of
prevailing professional norms." (Citation and
punctuation omitted.) Keener v. State, 301 Ga. 848,
850 (2) (804 S.E.2d 383) (2017). In reviewing counsel's
performance on appeal, "we must apply a strong
presumption that counsel's representation was within the
wide range of reasonable professional assistance."
(Citation and punctuation omitted.) Id. If an
appellant fails to satisfy either prong of this test, we need
not examine the other prong. Wright v. State, 291
Ga. 869, 870 (2) (734 S.E.2d 876) (2012). "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." (Citation and
punctuation omitted.) Id.
Hardin first asserts that his counsel was ineffective for
failing to object to testimony that he claims illegally
bolstered S. H.'s credibility. Hardin points to the
following testimony, in which the State questioned a
detective regarding "grooming behavior":
Q: Now, during your training and experience in investigating
at least five to 700 child sexual abuse cases, have you ever
encountered what is known as grooming behavior, what is that?
A: Grooming behavior is something that I have seen in
children, where they may be exposed to pornography, they may
be exposed to maybe comments coming from the perpetrator or
perpetrators making them feel more comfortable, you know,
over a time span of anywhere from days to weeks, to make them
feel more like the behavior is not abnormal. It could also be
in making the child feel like, especially if it starts at an
earlier age, I have actually worked cases where this is what
the child believes to be normal behavior, or the way it's
normal for them to receive affection from their parent or
true "that in no circumstance may a witness'
credibility be bolstered by the opinion of another as to
whether the witness is telling the truth." (Citation and
punctuation omitted.) Leggett v. State, 331 Ga.App.
343, 347 (4) (771 S.E.2d 50) (2015). However, nowhere in the
exchange relied upon by Hardin does the detective testify as
to whether he believed S. H. to be credible or otherwise
opine on her veracity. Rather, the detective explained the
process of grooming behavior based on his general experience.
And when a witness's statement does not directly address
the credibility of another witness, there is no improper
bolstering. See Jones v. State, 299 Ga. 40, 44 (785
S.E.2d 886) (2016). "Thus, a bolstering objection would
have been without merit, and failure to make a meritless
objection cannot be evidence of ineffective assistance."
(Citation and punctuation omitted.) Leggett, 331
Ga.App. at 348 (5) (a).
Hardin also asserts that trial counsel was ineffective for
failing to object to irrelevant and prejudicial testimony.
Hardin again points to the State's direct examination of
Q: Okay. And now [the responding investigator] brought you in
for a couple of reasons, and he asked you to get involved in
the investigation of this case for a couple of reasons; is
Q: And first that there was concern that maybe this would be
a Federal case?
A: Possibly because there was a possible incidence [sic] in
argues that this testimony was irrelevant because it does not
tend to prove or disprove whether Hardin committed the crimes
for which he was accused and that it was prejudicial because
it informed the jury that similar activity had occurred in
another state and suggested the case was "serious enough
to get 'the Feds' involved."
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." Gregoire
v. State, 309 Ga.App. 309, 311 (2) (711 S.E.2d 306)
(2011). And, "[r]easonable decisions as to whether to
raise a specific objection are ordinarily matters of trial
strategy and provide no ground for reversal." (Citation
and punctuation omitted.) Ballard v. State, 297 Ga.
248, 254 (6) (h) (773 S.E.2d 254) (2015). Here, the testimony
was offered simply to explain the detective's role in the
matter and the reasons that he was asked to assist in the
investigation before turning to the substance of his
investigation. At the motion for new trial hearing, trial
counsel testified that he did not recall his exact reason for
not objecting to this testimony. Given the context of this
case, we cannot say that no reasonable attorney would have
failed to object to this testimony. See Williams v.
State, 282 Ga. 561, 564 (5) (a) (651 S.E.2d 674) (2007)
("An attorney's decision to forego objecting to . .
. leading questions used to establish routine points
constitutes reasonable trial strategy.").
Hardin fails to show how the testimony regarding the
possibility of federal jurisdiction prejudiced him. Because
S. H. testified in much more detail regarding the acts of
sexual abuse committed by Hardin in Tennessee before the
family moved to Georgia, Hardin cannot show a reasonable
probability that the outcome of the trial would have been
different had his trial counsel objected to the
detective's testimony. See Wilson v. State, 297
Ga. 86, 88 (2) (772 S.E.2d 689) (2015) (failure of trial
counsel to object to cumulative evidence does not support
claim of ineffective assistance).
Hardin next contends that his trial counsel was ineffective
for unreasonably eliciting testimony that bolstered S. H.
Hardin points to the following testimony elicited during
cross-examination of the ...