1 The child hearsa y st atute ap plicable at the time

of trial i n 2005 stat

ed as fol lows: A statemen

t ma de by a child under the age of 14 y ears describingany ac

t of sexual c ontact or

phy sical ab

use perf ormed wit h or on the child by another or per formed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom ma

de if the child is availab le to testi fy

in th e proceedings and the court finds that the circ umstances of th e st at em en t p ro vi de su ff

ic ie nt in di ci a o f r el ia bi li ty. OCGA § 24-3-16 . Effec tive Janua ry 1, 2013, th e law g overning chil d hearsa

y is now codified at OCGA § 24-8-820. 295 Ga. 89 FINAL C OPY S14A022 4. COBB v. HART. BENHAM, Justice. In 2005, Appellant Will iam Cobb was convicted of child m olesta tion and related crimes involving t hree of his chil dren and sentenc ed to lif e in priso n plus 140 year s. His conv iction w as uphel d by the Court of Appeals in Cobb v. State , 300 Ga. A

pp. 565 (685 SE2d 458 ) (2009) . The only issue rais ed in that appeal

was the admission o f similar transactio ns evidence at trial. In April 20 10, Cobb filed a peti tion for ha

beas re lief, alleging fourteen grounds, including ineffec tive

as s istance of appel late c ounsel. The ha beas c ourt denie d relie f on all c laim s. One of the ba ses of a

ppella nt’s ineffe ctive a ssistanc e claim in t he habe as corpu s procee ding conce rned the admis sion at t

rial of t he videotaped forensic int erview of his daugh ter H. C. under the chil d hearsay statute. 1 We gran ted appe llant’s2 Appellant’s motion in limine also sought to exclude the videotaped forensic interviews of

H. C.’s two younge

r sisters who were five and three y ears old at the time. This appeal does not concer n the vide otaped f

orensic intervie ws of the t

wo y ounger sisters. 2 applic ation

for a ce rtifica te of prob able c aus e as to this videotaped interview, posing the following questions for appeal: (1) Did trial counse l prop erly pr eserve any iss ue rela

ting to the alleged improper admission into evidence at trial of 14-yea r-old [H. C.]’s videota

ped sta tements to fore nsic inve stigator s? (2) If so, did the ha beas c ourt err in co ncluding that appellate coun sel rendered effective assistance? For reasons set fo rth below, we affir m the habeas c ourt’s decisi on to deny habeas relief as to appellan t’s claim of inef fe ctive assistance

of appellate counsel. 1. The record shows that trial c ounsel fi led a pretrial motion in limine to exclude the vide otaped f

orensic intervi ews of

a ppella nt’s thre e daught ers, including H. C. 2 In his motion in limine, a ppellant opined that all

three forensic interviews were subjec t to exclusion because: [t]he tapes include im

proper opinion te s timony of the int erviewer and portray suggesti ve questions to the alleged victims[;] . .

. [t] he tapes include

hearsay that is ina dmissable

and not subje ct to the child he arsay ex

ceptio n [;] . . . [t]he tapes improperl y reference [appell ant’s] previous co nviction and incarcerat ion which places his characterinto issu e[;] .

. . [and] [t]he ta pes improperly demonstrate3

the intervi ewers [’] opinions tha t go to theultima

te issue s in the c ase to be decided by th e jury. (Emphasis supplied) . The trial court de nied the motion in lim ine. A

t trial , prior to H. C. ’s forensic interview being playe d to the jury, trial counsel re newed his objection to the vi deotape based on the grounds allege d in the motion inlimine. The trial c ourt denie d the oral motio n and H. C. ’s videotaped fo rensic intervi ew

was playe d for the j ury

during thetestimony

of the forens ic investigato r. H. C. also testified at trial a

nd was subject to cross-exam ination by appellant. A

tthe time of the forensic inte rview, H. C. was fourteen and , at the time of her trial testimony, she

was sixt een. On this record, it

appea rs that t rial c ounsel did generally ra ise the issue of the allege d imprope

r admi ssion of H. C. ’s videotaped fo rensic intervi ew when he filed his moti on in limine and the trial court d enied it. See Dasher v. State , 285 Ga. 308 (4) (676 SE2 d 181) (2009) (where a pretr ial m otion

in l imine is ruled upon by the trial court, the a dmissibility of evid ence in question is preserved for appellate revie w); Bryant v. State , 271 Ga . 99 (2) (515 SE2d 836) (1999) (admissibilit y of evidence preserv ed for appellate rev iew where pretrial motion in lim ine wa s denie d). While not menti oning H. C.’s age specifically,4

the motion

in limine did st ate that the videot aped forensic in terview was inadmissible hearsa

y not subject to the child h earsay exception. But see Watts

v. State , 246 Ga . App. 36 7 (3) (a) ( 541 SE2d 41) ( 2000) , re versed on ot her grounds by 274 Ga. 373 (552 SE2d 823 ) (2001) (defendant’s general objection to hearsa y stat eme nts was i

nsuffici ent to pr eserve his assertion on appeal that statements admitted under th e child hearsay statute lacked suffici ent indic ia of relia bility) ; Dupree v. State , 206 Ga. App. 4 (1 ) (424 SE2 d 316) (1 992). For the purposes of

this appea l only, we ass ume w ithout de ciding th at trial counse l’s filing of the motion i n limine preserved for appellate revi ew the adm issibilit y of H. C.’s forensic in terview based on her age. 2. Appella

ntallege s appel late c ouns el was defici ent and, but for her defici ent perform ance, the outc ome of his appe al would

have been di fferen

thad she raised on appea l th at H. C. ’s videota ped fore nsic inte

rview w as not admissible under the

child he arsay

statute beca use she was fou rteen at the time the interview too k place. See Slade v. S tate , 287 Ga. A pp. 34 (1) (6 51 SE2d 352) (2007) (chi ld hear say sta tut e applie s to chil dren who w ere under the ag e of fourteen when the state ment was made). It is undisputed that appellate counsel did not ra ise this specif ic issue during the motion for n ew trial3 The record shows appellant testified at the motion for new trial he aring that he believed his trial counsel w as ineff

ective f or failin g to file a motion to s

uppress H. C.’s vid

e otaped f orensic interviewon the basis that the statements therein were coerced by the forensic investigator thereby implying that H. C.’s statemen

t lacked sufficie nt indicia of relia bility . In the direct appeal , appella te counsel only raised an issue a s to whether the tr ial court erred in admitting similar transactions evidence, which wa s evidenc e unrela ted to H. C. Atthe habeas hearing, appellate counsel testified that she b elieved

the simila

r transa ctions issu

e was the best cla im to set fo rth on app eal. 5 procee dings or on direct appeal. 3 At the h abeas hearin g, appe llant di d not question appell ate c ounsel re garding this all egatio n and so there is no record of why appell ate c ounsel did

not pur sue this specific is sue at the motion f or new trial stage or on direct appea l. In it s order denying habeas relief, the habeas court resolve d the al legati on by det ermi ning the admissi on of H. C .’s videotaped forensic intervi ew wa s harm less be cause it was cumul ative o f her trial testimony. Regardless of wheth er H. C. ’s forensic int erview was admissiblepursuant to the chi ld hear say sta

tute, t he inte rview w as adm

issibleas a pri or consist en t state ment as set fort

h by this C ourt in Cuzzort v. State , 254 Ga. 745 (334 SE2d 661) (1985). In Cuzzor

t , we h eld a prior consistent statem ent was admissible wherethe veracity

of the de clara

nt was i n issue, the decla

rant wa s avail able fo r trial under oa

th, and t

he decla rant wa s subjec t to cross -exam ination. Addition ally, in Cowart v. State , 294 Ga. 333 (4) (a) (751 SE2d 399) (2013), we6

re-emphasized that for

a witne ss’s ve racity to be in iss ue, the prior cons istent state ment m

ust predat e any

allega tion of re cent fa

bricat ion by the witnes s. In this case, H. C.’s veracity was challenged when, o n cross-e xamin ation, defens e counsel posed questions implying that H. C., just before trial, met and colluded with app ellant ’s adult niece, who had testified that ap pellant molested her as a child, to make their trial testi monies more consist ent with each other

. Beca use H. C.’s veracity was in issue, she was ava ilable to testify under oa

th at tria l, and becau se she wa s subjec t to cross -exam ination, her vide otaped f

ore nsic int erview

was admissible as a prior consi stent statement. Foster v. State , 216 Ga . App. 26 (453 SE2d 482 ) (1994) (witnes s testimony about state ments made

by the 1 5- year-old molestation victi m was a dmissi ble unde r Cuzzor

t ). Since H. C. ’s forensic intervi ew wa s admi ssible a s a prior consistent stateme

nt, it would

have been fruitless for appellate c ounsel to raise , at the motion for new t rial sta ge or

on direct ap pe al, any error in a dmitting the forensic interview under the child hearsay statute

based on H. C. ’s age. As such, appellate cou nsel did not ren der constitutionally

ineffective assis tance. The ha beas c ourt’s judgment is affi rmed pursuant to the right fo r any reason rule. Allen v. State , 286 Ga . 273, 277 ( 687 SE2d 417) (20 09).7

Judgme nt affir

med. All the

Justice s concur .

Decid ed April

22, 2014. Habea s corpus. Ware Su

perior C ourt. Be fore Judge Boggs. Sarah L . Gerw ig-Moore , for appellant. Samuel S. Ole ns, Atto rney G enera l, Paul a K. Sm ith, Se nior Assis tant Attorney General , for appellee.