MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
appeal from his conviction for aggravated sexual battery and
child molestation, Miguel Gonzales argues that his trial
counsel was ineffective for failing to ask the victim's
mother her opinion about the victim's truthfulness. We
agree and we find that the deficient performance was
prejudicial. So we reverse Gonzales's convictions.
Because the evidence is legally sufficient to support the
convictions, Gonzales may be retried. Accordingly, we address
three issues that could occur upon retrial. We reject
Gonzales's arguments that the trial court erred by
refusing to allow counsel to ask the victim whether she
always told the truth; by refusing to allow counsel to ask
prospective jurors whether they believed Gonzales was guilty;
and in instructing the jury.
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, with the defendant
no longer enjoying a presumption of innocence."
Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d
165) (2004) (citation omitted). We neither weigh the evidence
nor judge the credibility of witnesses, but determine only
whether, after viewing the evidence in the light most
favorable to the prosecution, "any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
viewed, the record shows that between 2004 and 2007, when the
victim was between four and seven years old, she lived with
her family and Gonzales. In the spring of 2007, Gonzales
would often pick up the victim from elementary school and
drive her to the family's apartment. On one occasion,
Gonzales picked up the victim, took her home, and accompanied
her into the bedroom, where the victim, her mother, her
sister, and Gonzales routinely slept in the same bed. Once in
the bedroom, Gonzales touched the victim's vagina through
and then underneath her clothing. Unaware that Gonzales had
picked up the victim from school on this day, the
victim's mother called police. When the mother and the
police arrived at the apartment, they saw Gonzales's taxi
outside. According to the victim, Gonzales stopped fondling
her only when her mother and police knocked on the door of
soon moved out of the family's apartment, but remained on
good terms with them, and would often pick the girls up, take
them to his apartment, and help them with their homework. On
one such occasion, Gonzales was on his bed with the two girls
when he began taking off the victim's pants and
underwear, eventually penetrating her vagina with his finger.
Although Gonzales told the victim to "just [ ] let him
do what he was doing, " the victim screamed, awakening
her sister, who saw that Gonzales was taking off the
victim's pants. Gonzales stopped touching the victim and
ran out of the room. On another occasion in Gonzales's
bedroom, he took the victim's hand and placed it on his
March 2013, Gonzales picked the victim up from school and was
taking her to a dental appointment when he stopped at a red
light or stop sign and put his hand on the victim's
vagina. Although the victim removed his hand, Gonzales
"kept putting his hand back, " at which the victim
began to cry. On March 28, 2013, the victim told a school
guidance counselor that a family friend named Miguel had
"tried to molest her in his taxi" on the way to a
doctor's appointment and that he had molested her
"in the past." When the school principal notified
the victim's mother, the victim told her "everything
that had happened, " including that Gonzales had been
"molesting her since she was seven years old, "
touching her "with [her] clothes [on] and without."
was arrested and charged with child molestation arising from
the first touching incident, which was alleged to have
occurred between April 3, 2007, and April 2, 2008 (Count 1);
aggravated sexual battery arising from the incident witnessed
by the victim's sister and child molestation arising from
the incident of Gonzales placing the victim's hand on his
penis, both of which were alleged to have occurred between
April 3, 2007, and March 21, 2013 (Counts 2 and 3); and child
molestation arising from the incident in Gonzales's taxi,
which was alleged to have occurred "on or about"
March 22, 2013 (Count 4). After a jury found Gonzales guilty
of Counts 1, 2, and 4,  he was convicted and sentenced to 25
years to serve. His motions for new trial were denied.
Gonzales does not challenge the sufficiency of the evidence
against him, we have reviewed the record, and conclude that
the evidence was sufficient to sustain his conviction. See
OCGA §§ 16-6-4 (a) (defining child molestation),
16-6-22.2 (b) (defining aggravated sexual battery); Burke
v. State, 208 Ga.App. 446, 446 (1) (430 S.E.2d 816)
(1993) (evidence including that the defendant penetrated the
victim's vagina with his finger supported his conviction
for aggravated child molestation and aggravated sexual
battery); Jackson, supra, 443 U.S. at 319 (III) (B).
Victim's truthfulness; ineffective assistance of
asserts that (a) the trial court erred when it refused his
request to ask the victim whether she always told the truth,
thus allegedly revealing a character trait for untruthfulness
and that (b) trial counsel was ineffective in failing to
elicit testimony on this subject from either (i) the victim
or (ii) her mother. We find that the trial court did not err
by refusing to allow counsel to ask the victim whether she
always told the truth and that counsel was not ineffective in
this regard. But we find that counsel's decision not to
elicit testimony from the mother amounted to ineffective
assistance of counsel.
OCGA § 24-6-608 (b) provides in relevant part:
Specific instances of the conduct of a witness[ ]
for the purpose of attacking or supporting the
witness's character for truthfulness . . . may not be
proved by extrinsic evidence. Such instances may
however, in the discretion of the court, if probative
of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness: (1) [c]oncerning the
witness's character for truthfulness or untruthfulness;
or (2) [c]oncerning the character for truthfulness or
untruthfulness of another witness as to which character the
witness being cross-examined has testified.
supplied.) "[A]s a general rule, admission of evidence
is a matter resting within the sound discretion of the trial
court, and appellate courts will not disturb the exercise of
that discretion absent evidence of its abuse."
Anderson v. State, 337 Ga.App. 739, 742 (1) (788
S.E.2d 831) (2016) (citation and punctuation omitted).
Although a defendant is entitled to a "thorough and
sifting" cross-examination, for example, a trial court
has broad discretion in determining the scope and relevancy
of that examination. Morris v. State, 341 Ga.App.
568, 570-571 (1) (802 S.E.2d 13) (2017). And this Court has
noted that OCGA § 24-6-608 authorizes only "the use
of specific instances of conduct in order to attack
(or support) a witness's character for
truthfulness[.]" Gaskin v. State, 334 Ga.App.
758, 762 (1) (a) (780 S.E.2d 426) (2015) (emphasis supplied).
victim's therapy records, which the trial court reviewed
but excluded from evidence, included a therapist's notes
that the victim had "a history of lying to her
mother" and that the mother had told the therapist that
she could not trust the victim because the victim
"constantly lies to her and does things to be
vindictive." When Gonzales sought to ask the victim,
"Do you always tell the truth?" the trial court
sustained the State's objection to the question. Later in
the trial, Gonzales asked the court to reconsider its ruling
and sought to ask whether the victim "tell[s] the truth
to figures of authority?" The trial court disallowed
this question as well on the ground that it was impermissible
the questions Gonzales sought to ask of the victim - "Do
you always tell the truth?" and "[Do you] tell the
truth to figures of authority?" - were so broadly
phrased as to have no other effect than to prove a general
character trait for untruthfulness. Because these questions
did not seek to investigate any specific "act probative
of untruthfulness, " Gaskin, 334 Ga.App. at 763
(1) (a), there was no abuse of ...