Following a jury trial, Earl Forde, Sr., was convicted on one count of sexual battery against a child under the age of 16 years.1 He appeals his conviction, his sentence, and the denial of his motion for new trial, arguing i that his trial counsel provided ineffective assistance by failing to object to inadmissible hearsay evidence and ii that the trial court erred in sentencing him for the commission of a felony pursuant to the amended sexual battery statute despite the fact that it is unclear from the jury’s verdict whether he was found guilty of pre-amendment or post-amendment conduct. For the reasons set forth below, we affirm Forde’s conviction but vacate his felony sentence and remand for resentencing. Viewed in the light most favorable to the verdict, Davis v. State ,2 the record shows that in 2002, Forde’s 13-year-old daughter, B. F., was disciplined by her eighth grade teacher for talking back in class. Later that day, after the school informed him of her behavior, Forde ordered B. F. to her bedroom and told her that he was going to punish her with a spanking. As Forde demanded, B. F. removed her pants and lay down on her stomach, but instead of spanking her, Forde began touching her privates and only stopped when B. F. began crying.
A couple of years passed with no further abuse occurring. However, on two occasions in either late 2003 or early 2004, when B. F. was 15-years-old and in the tenth grade, Forde ordered B. F. to a bedroom, demanded that she remove her pants, and touched her privates under the pretense of “inspecting” her to determine if she was having sex. In the early summer of 2004, Forde once again demanded that B. F. allow him to touch her privates for what he termed an “inspection,” but this time B. F. refused and immediately thereafter called her grandmother in New York to report that her father had been sexually abusing her. That same day, B. F.’s grandmother informed B. F.’s mother Forde’s wife of the abuse that had been occurring over the past few years. After B. F.’s mother confirmed what B. F.’s grandmother told her by talking to her daughter, she notified the police.
