BARNES, P. J., MCMILLIAN and REESE, JJ.
Barnes, Presiding Judge.
Ventura was convicted by a Cobb County jury of two counts of
child molestation and one count of enticing a child for
indecent purposes. Thereafter, Ventura filed a motion and
amended motion for new trial, which the trial court denied.
On appeal, Ventura contends that the prosecutor should have
been disqualified because of a conflict of interest, the
trial court erred by failing to permit questions about
witness bias or motive, trial counsel was ineffective, and
that he did not have proper notice that he might be charged
with the lesser included offense of child molestation. Upon
our review and consideration of Ventura's alleged errors,
Ventura does not challenge the sufficiency of the evidence,
however, construed in the light most favorable to the
verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979), the evidence shows that after
Ventura met the victim on Facebook, he visited her at her
home, forced the 13-year-old victim into her bedroom, locked
the door, pulled down her pants, and inserted his finger into
her vagina and fondled her breasts. This evidence was
sufficient for a rational trier of fact to find Ventura
guilty of the crimes charged beyond a reasonable doubt. See
Castaneda v. State, 315 Ga.App. 723 (1) (727 S.E.2d
contends that the prosecutor had a conflict of interest and
should have been disqualified because her husband had
previously represented him in an unrelated felony case in
Cobb County. He contends that during his representation the
prosecutor's husband learned confidential information
about him which he "may have unwittingly shared"
with the prosecutor. Further, according to Ventura, the same
rules of professional conduct which prohibit partner and
associates at a disqualified attorney's law firm from
accepting employment, should be employed in this
circumstance. In denying Ventura's motion for new trial
on this ground and ascertaining no conflict of interest, the
trial court found that nothing in the Georgia Rules of
professional conduct prohibit a prosecutor from prosecuting
the former client of his or her spouse. We agree.
the preliminary hearing before trial, the prosecutor
disclosed that her husband had previously represented Ventura
in a 2010 conviction for terroristic threats. And that, in
the event Ventura elected to testify, "the State could
be tendering that certified conviction against Ventura."
Ventura's attorney responded that he did not see
"any conflict . . . [with] the mere fact that [the
prosecutor's] husband stood beside [Ventura] when he
entered a plea." Ventura acknowledged that he was aware
of the relationship, but responded when asked if he was
satisfied that there was no conflict,
you're husband and wife. I mean, you talk to each other
every day and every night . . . Hey, guess what. I got your -
the one you represented for terroristic threat, he pleading
guilty or whatever, I'm going to take him to trial. So to
be honest with you I don't know, to be honest with you.
the trial court found that it "was satisfied that
here's no significant conflict, or no conflict with
respect to proceeding with this case based upon that sole
fact. And particularly the fact that . . . it was something
you were able to discuss at some time prior to the time of
liberally construing the prosecutor's disclosure and
Ventura's response as a motion to disqualify,
[w]e apply an abuse of discretion standard when reviewing a
trial court's ruling on a motion to disqualify a
prosecutor. See Head v. State [253 Ga.App. 757');">253 Ga.App. 757, 758
(2) (560 S.E.2d 536) (2002)] (abuse of discretion standard
applies to rulings on motion to disqualify). Such an exercise
of discretion is based on the trial court's findings of
fact which we must sustain if there is any evidence to
Whitworth v. State, 275 Ga.App. 790, 791 (1) (622
S.E.2d 21) (2005).
There are two generally recognized grounds for
disqualification of a prosecuting attorney. The first such
ground is based on a conflict of interest, and the second
ground has been described as "forensic misconduct."
For example a conflict of interest has been held to arise
where the prosecutor previously has represented the defendant
with respect to the offense charged, or has consulted with
the defendant in a professional capacity with regard thereto;
such conflict also has been held to arise where the
prosecutor has acquired a personal interest or stake in the
defendant's conviction. In applying these standards, the
reversal of a conviction due to such a conflict of interest
requires more than a theoretical or speculative conflict. An
actual conflict of interest must be involved.
(Citations and punctuation omitted.) Id. 793 (1)
assertion that the prosecutor's marriage to an attorney
that represented him in an unrelated plea three years earlier
might result in the prosecutor gaining confidential
information in the prosecution of an unrelated case, amounts
to the type of status disqualification that the Georgia
Supreme Court rejected in Blumenfeld v. Borenstein,
247 Ga. 406 (276 S.E.2d 607) (1981). There, the Court refused
to assume a per se rule of disqualification on the sole
ground of a marital relationship between the attorneys.
Id. at 410. The Court held where, as is the case
here, "the appearance of impropriety [is] based not on
conduct but on status alone. This is an insufficient ground
for disqualification." Id. As the Court
reasoned, "[w]hile we cannot disagree with the
proposition that the marital relationship may be the most
intimate relationship of a person's life, it does not
follow that professional people allow this intimacy to
interfere with professional obligations." Id.
at 408. See Jones v. ...