Marcos Ramirez Gonzalez appeals the trial court’s denial of his motion for new trial after he was convicted by a jury on one count of rape, two counts of aggravated child molestation, one count of aggravated sexual battery, and four counts of child molestation1 involving his stepdaughter. Gonzalez does not contest the sufficiency of the evidence to support these convictions, but rather asserts error in the conduct of his trial. Accordingly, we will address the underlying facts of the case only as necessary to consider Gonzalez’s arguments on appeal. 1. Gonzalez first contends that his trial counsel was deficient in failing to move for a mistrial after a juror, who spoke fluent Spanish, told the bailiff that portions of the victim’s videotaped statements had not been properly translated. The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.668 104 SC 2052, 80 LE2d 674 1984, asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. Citation, punctuation and footnotes omitted. Bruce v. State, 252 Ga. App. 494, 498 2 555 SE2d 819 2001. “We affirm the trial court’s decision on effective assistance of counsel unless the trial court’s underlying findings are clearly erroneous.” Footnote omitted. Leppla v. State , 277 Ga. App. 804, 810 2 627 SE2d 794 2006.
The victim’s statement was videotaped and involved an interpreter’s translation from English into Spanish and from Spanish into English. The parties entered into a pre-trial stipulation in which both sides agreed that the recording was a fair and accurate representation of the victim’s interview and that the interpreter provided an accurate translation. This stipulation was read to the jury before the recorded statement was played. A short time later, during a break, the trial court informed counsel that a bailiff had reported that Juror Wellborn, who was fluent in Spanish, was requesting instruction “because she understands the Spanish we have” and was having “difficulty, or at least some difficulty, that she felt necessary to report, because some of the colloquialisms and translation is not necessarily the way she would translate it.” The trial court also noted that a portion of the Spanish had not been translated at all. Gonzalez’s counsel stated that she had the interview checked and she believed that the non-translated portion was innocuous, but she asked the trial court to give Juror Wellborn a curative instruction “just to rely on the English interpretation in deliberation.”
