Williams v. State

Pope, Judge.

Defendant Samuel Hopkins Williams was convicted of child molestation, and appeals. We affirm.

1. Defendant first challenges the sufficiency of the evidence. However, our review of the transcript shows that the evidence adduced at trial was more than sufficient to authorize defendant’s conviction of the offense of child molestation under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Smith v. State, 193 Ga. App. 196 (387 SE2d 571) (1989); Brown v. State, 192 Ga. App. 864 (1) (386 SE2d 734) (1989).

2. Defendant also contends there was a fatal variance between the acts charged in the indictment and the proof offered at trial. The indictment charged that defendant committed the offense of child molestation “by placing his male sex organ near, on and into [the victim’s] anus and female sex organ. . . .’’As defendant contends on appeal the evidence at trial showed the acts of molestation involved only the six-year-old victim’s anus, not her vagina. “ ‘When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. (Cits.) Inasmuch as the evidence showed the defendant had molested the child in one of the ways alleged, [the guilty verdict was authorized and reversal is not required.] (Cit.)’ Henry v. State, 154 Ga. App. 120 (1) (267 SE2d 653) (1980).” Castillo v. State, 178 Ga. App. 312 (1) (342 SE2d 782) (1986).

3. Defendant also contends, for the first time on appeal, that he received ineffective assistance of counsel at trial. The record shows that appellate counsel was appointed to represent the defendant on January 17, 1990, and that the court entered an order allowing defendant to file an out-of-time appeal on January 23, 1990. Defendant’s out-of-time notice of appeal was filed on that date. “ ‘[Defendant] did not raise the ineffectiveness issue when he originally sought an out-of-time appeal nor was the issue later raised in the trial court before the present appeal was brought. . . . (Therefore), pursuant to the authority of Bell v. State, (259 Ga. 272 (381 SE2d 514) (1989)), we are constrained to hold that [defendant] has waived the right to raise the ineffectiveness issue in the context of the present appeal.’ Smith v. State, 192 Ga. App. 246, 247 (2) (384 SE2d 451) (1989).” Ponder v. State, 194 Ga. App. 446, 450 (10) (390 SE2d 869) (1990). Cf. Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990), cert, denied, October 18, 1990.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.