" Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Here, we look to the decision by the Court of Appeals of Georgia on Green's direct appeal in Green v. State, 249 Ga.App. 546, 547 S.E.2d 569 (2001), because the state habeas court concluded that it was bound by the state appellate court's decision regarding the merits of this claim. The state court's findings and conclusion relevant to the ineffective assistance of counsel claim are as follows:
Griffis v. State , 222 Ga. App. 322, 323 (1), 474 S.E.2d 119 (1996) ; accord Bell v. State , 352 Ga. App. 802, 807 (1), 835 S.E.2d 697 (2019) ; Adams v. State , 299 Ga. App. 39, 41 (1), 681 S.E.2d 725 (2009).Griffis , 222 Ga. App. at 323 (1), 474 S.E.2d 119 ; accord Green v. State , 249 Ga. App. 546, 549 (1) (b), 547 S.E.2d 569 (2001) ; Wimpey v. State , 180 Ga. App. 529, 530 (2), 349 S.E.2d 773 (1986).See Shepherd v. State , 353 Ga.App. 228, 229–30 (1), 836 S.E.2d 221, 223 (1) (2019) ("With respect to Count 3, which alleged that [defendant] committed aggravated child molestation by placing his mouth on [the victim's] genital area, we are constrained to agree that the evidence was insufficient.
Carr v. State, 275 Ga. 185, 186 ( 563 S.E.2d 850) (2002). See alsoGreene v. State, 266 Ga. 439, 446-447 ( 469 S.E.2d 129) (1996), rev'd on other grounds, 519 U.S. 145 ( 117 S.Ct. 578, 136 L.Ed.2d 507) (1997);Burgess v. State, 264 Ga. 777, 785 ( 450 S.E.2d 680) (1994); Green v. State, 249 Ga. App. 546, 554 ( 547 S.E.2d 569) (2001); Richards v. State, 232 Ga. App. 584 ( 502 S.E.2d 519) (1998); Horne v. State, 192 Ga. App. 528, 529 ( 385 S.E.2d 704) (1989). While our appellate courts have maintained that `golden rule' arguments are improper, we have provided very little guidance as to what exactly constitutes a prohibited `golden rule' argument.
To the contrary, J. O. testified that Wilkerson forcefully tried to "shove" his penis in J. O.’s anus although he did not "succeed," and attempted to force J. O. to perform sodomy on him. From this testimony, the trial court could conclude that Wilkerson committed a prior sexual assault as defined in OCGA § 24-4-413 (d) (1) - (3). See OCGA § 16-6-2 (a) (1) ("A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another"); Green v. State , 249 Ga. App. 546, 549 (1) (b), 547 S.E.2d 569 (2001) (proof of penetration is not required establish sodomy, all that is required is some contact). See also Ragland v. State , 332 Ga. App. 510, 513 (3), 773 S.E.2d 772 (2015) (decided under the former Evidence Code; similar transaction victim's testimony is alone sufficient to prove defendant committed acts).
We need not address this issue in the first instance because even if the trial court gave an erroneous jury charge, the charge was harmless given the overwhelming evidence of guilt in this case. See Boatright v. State , 289 Ga. 597, 600-602 (7), 713 S.E.2d 829 (2011) (trial court’s jury instruction that was not properly adjusted to the evidence was harmless in light of the overwhelming evidence of appellant’s guilt); Abercrombie v. State , 307 Ga. App. 321, 322-323 (1), 704 S.E.2d 483 (2010) (even if trial court’s jury charge on rape created an "impermissible presumption," charge was harmless because the instruction was applied to an element of the crime not at issue and the evidence of guilt was overwhelming); Green v. State , 249 Ga. App. 546, 551-552 (2), 547 S.E.2d 569 (2001). Here, the two surviving victims of the incident knew Burlison and identified him as the shooter.
Georgia law does not require penetration in order to prove sodomy. See Adams v. State , 299 Ga. App. 39, 40 (1), 681 S.E.2d 725 (2009) (although evidence showed that the defendant "put his private on her butt," penetration is not an element of sodomy or aggravated sodomy and the state is not required to prove penetration to support an aggravated sodomy charge); Green v. State , 249 Ga. App 546, 549 (1) (b), 547 S.E.2d 569 (2001) ("Proof of penetration is not required for a conviction of sodomy. All that is required is some contact.") (citation omitted).
(Citation and punctuation omitted.) Green v. State, 249 Ga.App. 546, 549(1)(a), 547 S.E.2d 569 (2001). Wofford was charged with two counts of aggravated child molestation against V.H. based on his acts of placing her mouth on his penis (Count 2) and placing his mouth on her vagina (Count 3). He was also charged with one count of child molestation against V.H. based on his act of touching her vagina with a vibrator (Count 5).
Indeed, Palacios–Baras's claim that “[certain] evidence was plainly illegal pursuant to our Supreme Court's holding in Luangkhot ” is, on its face, the product of hindsight, which has “no place in an assessment of the performance of trial counsel.” Jones v. State, 292 Ga. 593, 600(7)(d), 740 S.E.2d 147 (2013); Green v. State, 249 Ga.App. 546, 554(4), 547 S.E.2d 569 (2001) (determining that trial counsel's decision whether to file a suppression motion will not be judged in hindsight). Hindsight, whether by a court, the defendant, or defendant's counsel, is a legally insufficient basis for concluding that counsel's performance at trial was deficient. As the United States Supreme Court has explained, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
Indeed, Palacios-Baras's claim that "[certain] evidence was plainly illegal pursuant to our Supreme Court's holding in Luangkhot" is, on its face, the product of hindsight, which has "no place in an assessment of the performance of trial counsel."Jones v. State, 292 Ga. 593, 600 (7) (d) (740 SE2d 147) (2013); Green v. State, 249 Ga. App. 546, 554 (4) (547 SE2d 569) (2001) (determining that trial counsel's decision whether to file a suppression motion will not be judged in hindsight). Hindsight, whether by a court, the defendant, or defendant's counsel, is a legally insufficient basis for concluding that counsel's performance at trial was deficient. As the United States Supreme Court has explained, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
Contrary to Ellis's contentions, “evidence of physical trauma or sexual assault” to the victim's mouth was not necessary to sustain Ellis's conviction for aggravated sodomy. Cf. Green v. State, 249 Ga.App. 546, 549(1)(b), 547 S.E.2d 569 (2001) (“Proof of penetration is not required for a conviction of sodomy. All that is required is some contact.