Following a jury trial, Jason Fedak was convicted of a single count of violating Georgia’s peeping Tom statute, OCGA § 16-11-61. He now appeals from the denial of his new trial motion, asserting that he received ineffective assistance of counsel because his trial attorney: i failed to prepare or present any evidence in support of his sole defense, that he lacked the requisite intent to spy upon the victim; ii failed to request a jury instruction on the lesser included offenses of loitering and prowling; and iii failed to object to the State’s leading questions during direct examination of the victim, thereby allowing the State to introduce substantive evidence that prejudiced him. Under the facts of this case, we are constrained to find that trial counsel’s failure to investigate what evidence was available to support Fedak’s defense and his subsequent failure to present any such evidence at trial rendered him ineffective. Specifically, we find that while the State proved that Fedak engaged in the conduct at issue, the evidence which trial counsel failed to investigate or present may have been sufficient to create a reasonable doubt as to whether Fedak engaged in that conduct for the purpose of spying on the victim. We therefore reverse the trial court’s order. To prevail on a claim of ineffective assistance of trial counsel, a defendant bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. The trial court’s factual findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous, but we review the trial court’s legal conclusions de novo. Citation omitted. Gibbs v. State .1 Viewed in the light most favorable to the verdict, Culver v. State, 2 the record shows that the victim in this case was a then-16-year-old girl who lived in a house across the street from Fedak’s home. The girl’s bedroom was at the front of the house, and had two large windows that faced the front yard; one of those windows was covered only by a sheer, white curtain. Between 10:30 and 11:00 p.m. on the night of August 19, 2008, the girl was in her bedroom, lying on the bed and watching television. She turned towards the windows because she sensed that someone was there. Through the sheer window covering, the girl saw the face of a man with dark hair and wearing a white t-shirt. She turned away, and then began to sit up slowly. As she did so, she turned back towards the window, but the man was gone. The girl then went and woke her parents, who called police.
When police arrived, the girl’s parents met them in the driveway. While talking with police, the mother spotted a shadowy figure rounding the corner of a house two doors down the street. A police officer went to investigate and found Fedak hiding underneath a dump truck parked in the driveway of that house. Fedak initially failed to respond to the officer, but eventually complied with his command to come out from under the truck. In response to the officer’s questions, Fedak stated that he was hiding because he was playing a game. He admitted that he had been at the neighbor’s house, but stated that he had merely gone over to say hello. Fedak explained that when he got to the house he saw that the daughter’s light was the only one on and, realizing how late it was, he left. Police arrested Fedak, and he was subsequently indicted on a single count of peeping Tom.
