MILLER, P. J., ANDREWS and SELF, JJ.
found James Roy Ray guilty of rape and two counts of sexual
battery. The trial court denied Ray's motion for new
trial, and he appeals, challenging several evidentiary
rulings and asserting that he received ineffective assistance
of counsel at trial. Although we find no merit in many of
Ray's arguments, two of his claims require additional
consideration below. Accordingly, we vacate the order denying
his motion for new trial and remand for further proceedings.
favorably to the jury's verdict, the evidence shows that
the victim, a mentally challenged adult, lived with her aunt
and several cousins. Ray, who was also related to the victim,
visited the home on occasion, and the family spent time at
his house, as well. In December 2009, the victim disclosed to
a family member that Ray had assaulted her. The victim's
aunt reported the disclosure to the police.
the ensuing investigation, the victim submitted to a forensic
interview and described several instances of sexual abuse by
Ray. The victim confirmed that abuse at trial, testifying
that on various occasions Ray had inserted his "boy
part" into her "girlie part, " touched her
"girlie part" with his tongue and finger, placed a
sex toy on her "girlie part, " and touched her
breast with his tongue. She further testified that Ray never
asked whether he could touch her, that she did not want to
have sexual relations with him, and that the encounters made
her feel dirty.
argues that the trial court erred in admitting a video
recording of the victim's December 29, 2009 forensic
interview, which was played for the jury during the forensic
interviewer's testimony, after the victim had testified.
Ray objected to the video's admission, characterizing the
evidence as hearsay that improperly bolstered the
victim's credibility. The trial court disagreed with this
characterization, finding the video admissible as a prior
consistent statement. On appeal, we review this determination
for abuse of discretion. See Kidd v. State, 292 Ga.
259, 260-261 (2) (736 S.E.2d 377) (2013).
OCGA § 24-6-613 (c) governs the admissibility of prior
consistent statements. Pursuant to that provision:
A prior consistent statement shall be admissible to
rehabilitate a witness if the prior consistent statement
logically rebuts an attack made on the witness's
credibility. A general attack on a witness's credibility
with evidence offered under Code Section 24-6-608 or 24-6-609
shall not permit rehabilitation under this subsection. If a
prior consistent statement is offered to rebut an express or
implied charge against the witness of recent fabrication or
improper influence or motive, the prior consistent statement
shall have been made before the alleged recent fabrication or
improper influence or motive arose.
trial court concluded that the video recording rebutted an
express or implied charge that prosecutors or family members
had improperly influenced the victim's testimony. We find
no error. One relative admitted on cross-examination that she
had discussed the victim's testimony with the victim
shortly before trial. Another relative noted that the victim
was "pretty easily suggestible, " will "answer
yes to things even if she . . . doesn't really mean yes,
" and "wants to make the people around her
happy." The victim also conceded that she had discussed
her testimony and practiced her responses with personnel from
the district attorney's office.
primary defense at trial was that various individuals had
convinced the mentally-disabled victim to fabricate the
allegations against him. He certainly claimed that the victim
was influenced before the December 29, 2009 interview. But
through his cross-examination of the victim and other
witnesses, Ray also intimated that relatives and state
officials had influenced her trial testimony after
the interview occurred. The trial court appropriately
admitted the prior consistent statement to rebut Ray's
implied charge of recent undue influence. See OCGA §
24-6-613 (c); Bolling v. State, 300 Ga. 694, 701 (3)
(797 S.E.2d 872) (2017) (prior consistent statement
admissible where defense implicitly argued that witness had
motive to lie that arose after statement was given).
Next, Ray claims the trial court erred in excluding evidence
that the victim, who was 38 years old when the trial took
place, had been sexually abused when she was approximately 14
years old. In particular, Ray wanted to establish that the
victim was raped by her brother, whom the family later
allowed to live near the victim. According to defense
counsel, this evidence was relevant to impeach the
credibility of the victim's cousin and primary care-giver
at the time of trial, who asserted that she sought to keep
the victim safe from sexual predators. The trial court
disagreed, deeming the evidence irrelevant.
no reversible error. The trial court prevented Ray from
linking the brother's criminal history to the victim. But
Ray established through cross-examination that the brother
was a registered sex offender who was briefly allowed to live
near the victim on her care-giver's property. He thus
successfully presented evidence that called the
care-giver's credibility into question and placed a sex
offender close to the victim. Even if further information
about the brother's abuse was relevant to impeach the
care-giver, we find it highly probable that exclusion of this
evidence did not affect the verdict. See Nix v.
State, 280 Ga. 141, 145 (5) (625 S.E.2d 746) (2006)
(highly probable that exclusion of cumulative evidence did
not impact verdict). Although Ray now argues that particular
testimony by other witnesses opened the door for admission of
this evidence on other grounds, he has not shown that he
raised these arguments at trial, and we will not consider
them for the first time on appeal. See Prince v.
State, 257 Ga. 84, 86 (3) (355 S.E.2d 424) (1987)
(appellate court will not consider argument regarding
admissibility of evidence raised for first time on appeal).
also raises several ineffective assistance allegations,
asserting that errors by his defense team entitle him to a
new trial. To establish ineffective assistance, Ray must
demonstrate that "trial counsel's performance fell
below a reasonable standard of conduct and that there existed
a reasonable probability that the outcome of the case would
have been different had it not been for counsel's
deficient performance." Oliver v. State, 337
Ga.App. 90, 92 (786 S.E.2d 701) (2016) (citation and
to Ray, trial counsel unreasonably opened the door to
admission of the victim's forensic interview by
suggesting, through cross-examination, that the victim's
testimony had been improperly influenced. We disagree.
"How to conduct cross-examination is a tactical decision
within the exclusive province of counsel."
Oliver, supra at 95 (2). And "[t]actical
decisions, even if they misfire, do not generally equate with
ineffectiveness." Id. (citation and punctuation
omitted). As noted above, Ray's primary defense was that
various individuals influenced the victim to fabricate the