James Glenn Wilder was convicted on two counts each of child molestation and sexual exploitation of children, and one count each of aggravated child molestation and statutory rape. He was sentenced as a recidivist to two consecutive life sentences plus 60 years. Following the denial of his motion for new trial, Wilder appeals, arguing that the trial court erred in denying his motion to suppress, improperly sentencing him as a recidivist, failing to merge two counts of the indictment, failing to grant his motion for a directed verdict, and imposing a cruel and unusual sentence. Wilder also contends that the indictment was defective and that trial counsel was ineffective. Having reviewed these claims, we affirm the judgment, but nevertheless remand this case for resentencing in light of the trial court’s error in sentencing Wilder as a recidivist. Construed in favor of the verdict, the evidence showed that Wilder had sexual intercourse with a 15-year-old girl on several occasions in 2003 and 2004. Wilder took nude pictures of the victim, and also took pictures and recorded videotape of himself and the victim engaging in sex acts. The victim testified at trial to these events and also stated that she told Wilder that she was 15 years old. A witness testified that she told Wilder that the victim was 15 years old and that Wilder told her he was having a sexual relationship with the victim.
1. Wilder first claims that the trial court erred in denying his motion to suppress. When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. The trial court’s findings based upon conflicting evidence are analogous to a jury verdict, and the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment and must not disturb the trial court’s ruling if there is any evidence to support it. Citations, punctuation and footnotes omitted. Lane v. State , 287 Ga. App. 503 651 SE2d 798 2007.
