MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
McFadden, Presiding Judge.
jury trial, Larry Michael Davis was convicted of two counts
of child molestation. The trial court denied Davis's
motion for new trial, and he filed this appeal. Davis argues
that when denying the motion for new trial, the trial court
failed to exercise his discretion and weigh the evidence in
his consideration of the general grounds as required by OCGA
§ 5-5-21. But nothing in the trial court's order
denying the motion for new trial shows that he failed to
exercise this discretion. Davis argues that trial counsel was
ineffective. But he has failed to show that counsel's
performance was both deficient and prejudicial. So we affirm.
in the light most favorable to the jury's verdict, see
Bryant v. State, 296 Ga. 456, 457 (1) (769 S.E.2d
57) (2015), the evidence at trial showed that the victim, who
was six years old at the time, spent the night at Davis's
house. In the middle of the night, the victim entered
Davis's bedroom, saying that she was scared. She climbed
into bed with Davis. Davis touched her between her legs with
his erect penis.
gave a statement to police that was introduced at trial. In
his statement, Davis said that once the victim was in his
bed, he fell asleep, and that when he woke up, his erect
penis was out of his pants, pressing against the victim
between her legs.
Denial of motion for new trial.
argues that the trial court failed to exercise his discretion
under OCGA § 5-5-21 when he denied the motion for new
trial. Nothing in the trial court's order, however,
indicates that he did not exercise his discretion or applied
the incorrect standard of review.
OCGA § 5-5-21, "[t]he presiding judge may exercise
a sound discretion in granting or refusing new trials in
cases where the verdict may be decidedly and strongly against
the weight of the evidence even though there may appear to be
some slight evidence in favor of the finding." When a
motion for new trial challenges the weight of the evidence
under OCGA § 5-5-21, the trial court "sits as a
thirteenth juror. The motion is addressed to the discretion
of the court, which should be exercised with caution, and the
power to grant a new trial on this ground should be invoked
only in exceptional cases in which the evidence preponderates
heavily against the verdict." King v. State,
344 Ga.App. 244, 246 (2) (809 S.E.2d 824) (2018) (citation
and punctuation omitted).
argues that the language of the trial court's order shows
that the court failed to exercise this discretion. We
disagree. The trial court expressly addressed Davis's
argument that the verdict was contrary to the evidence and
strongly against the weight of the evidence. After concluding
that the evidence was sufficient under Jackson v.
Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
(1979), the trial court wrote that it found "that the
verdict is not contrary to the law and principles of
[N]othing in the trial court's order indicates that it
did not exercise its discretion or that it in any
way applied the incorrect standard to its review. And as we
have previously explained, in interpreting the language of an
order overruling a motion for a new trial, it must be
presumed that the trial judge knew the rule as to the
obligation thus devolving upon him, and that in overruling
the motion he did exercise this discretion, unless the
language of the order indicates to the contrary and that the
trial judge agreed to the verdict against his own judgment
and against the dictates of his own conscience, merely
because he did not feel that he had the duty or authority to
override the findings of the jury upon disputed issues of
fact. There being no such indication here, this enumeration
of error is without merit.
Jones v. State, 339 Ga.App. 95, 105 (4) (791 S.E.2d
625) (2016) (citations and punctuation omitted).
Assistance of counsel.
argues that trial counsel was ineffective in three ways: he
failed to investigate two possible motives of the mother of
the victim to fabricate the charges against him; he failed to
subpoena Davis's telephone records; and he failed to call