author: BARNES, Presiding Judge.

text:
    A15A0713.
    MCCOY v. THE STATE.
    (774 SE2d 179)
   BARNES, Presiding Judge.

Following a jury trial, Everton McCoy was convicted of armed robbery, fleeing or attempting to elude a police officer, and obstruction of an officer. McCoy filed a motion for new trial, which the trial court denied, and he now appeals from that order. On appeal, McCoy contends that the trial court erred in admitting a prior bad act that was dissimilar to the charged crime and for which there was only a highly prejudicial identification of McCoy as the perpetrator. Upon our review, and for the reasons that follow, we affirm the trial court’s order denying McCoy’s motion for new trial.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the appellant is no longer entitled to the presumption of innocence. Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013). We neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the appellant guilty of the crimes charged beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24 (752 SE2d 84) (2013).

So viewed, the evidence shows that on December 26, 2011, the victim was changing a tire on his sister’s car when he was approached by a man who brandished a gun at him and demanded money. The robber took the victim’s wallet, which contained $500 in cash and a bank card, his cell phone, and his keys. After the robber hurriedly walked away, the victim retrieved his cell phone and keys, which the robber had discarded nearby, called 911, and got into his car to follow the Honda Civic in which the robber was traveling and which was determined to be stolen. The victim followed the car, and stayed on his cell phone with the 911 operator until two patrol cars took up the pursuit of the robber’s vehicle. The ensuing high-speed chase lasted approximately four minutes until the vehicle crashed, and the robber, still holding his gun and later identified as McCoy, and his accomplice ran from the scene. The men split up as they ran away. Police captured one of the men, who was identified as McCoy’s cousin, Damario, but McCoy escaped. One of the pursuing officers later identified McCoy from a photograph in the lead detective’s office. McCoy and Damario were indicted as co-defendants for armed robbery, two counts of theft by receiving stolen property, hit and run, VGCSA, fleeing or attempting to elude a police officer, and obstruction of an officer.

During the trial, Damario testified that he drove the stolen car to the apartment complex to sell marijuana, and that when they arrived at the complex, McCoy got out of the car. He further testified that when McCoy got back into the car he told Damario that, “I had to get him,” and that after the ensuing “chaos” he assumed “those words meant that [McCoy] robbed somebody.” Damario also testified that he saw the handle of what he believed to be a gun in McCoy’s hand.

On appeal, McCoy contends that the trial court erred in admitting evidence of a prior bad act under OCGA § 24-4-404 (b). He maintains that the trial court erred in admitting evidence of a Florida robbery because it was too dissimilar to the case-in-chief and based upon a highly prejudicial in-court identification of McCoy. We disagree.

Because McCoy’s trial was held after January 1, 2013, Georgia’s new Evidence Code controls the admission of similar transaction evidence. OCGA § 24-4-404 (b) of the new Code provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Furthermore, under OCGA § 24-4-403, “[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” “We review a trial court’s evidentiary rulings under an abuse of discretion standard of review.... [Hjowever, we accept a trial court’s factual findings unless they are clearly erroneous. . . .” (Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012).

The State introduced evidence that on June 12, 2011, in Ocala, Florida, McCoy jumped into a car, put a gun to the victim’s head, ordered the victim to drive before stopping the car, robbed the victim of his wallet, and drove off in the victim’s car. The victim identified McCoy in court as the robber. Three days later, on June 15, 2011, a Hillsborough County Florida sheriff’s deputy stopped McCoy, who was driving a Chevy Tahoe that had been stolen in Marietta on June 10, 2011. McCoy fled from the car, but was later apprehended. The officer who stopped McCoy identified him in court. The Marietta victim testified that she was carjacked at a Marietta Target parking lot and that her Tahoe was taken but later recovered in Florida. The State stipulated that it had no evidence that McCoy had committed the Marietta carjacking and that the victim had identified another man as the perpetrator. The trial court admitted the evidence over McCoy’s objection to show intent and knowledge.

Our courts apply a three-part test to determine the admissibility of evidence of other crimes and acts pursuant to OCGA § 24-4-404 (b):

(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.

(Citation and footnote omitted.) Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).

Regarding the first prong, the admission of the similar transaction evidence to establish intent and knowledge, “a defendant who enters a not-guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by . . . Rule 404 (b) evidence absent affirmative steps by the defendant to remove intent as an issue.” (Punctuation and footnote omitted.) Curry v. State, 330 Ga. App. 610, 614 (1) (768 SE2d 791) (2015). McCoy did not employ any affirmative steps to remove intent as an issue, and thus the trial court did not err in finding that the similar transaction was admissible to show intent.

Although McCoy contends that the second prong of the similar transaction test was not met in that the in-court identification by the similar transaction victim was too prejudicial and thus could not be used to find that he committed the act, the victim’s in-court identification of appellant was based upon the fact that he had observed McCoy at close range during the carjacking and robbery. “[A] witness’s in-court identification is admissible if it has an independent origin.” Doublette v. State, 278 Ga. App. 746, 749 (1) (629 SE2d 602) (2006). See Jennings v. State, 277 Ga. App. 159, 162-163 (3) (626 SE2d 155) (2006) (victim’s testimony about crime and in-court identification of defendant as perpetrator sufficient to establish that defendant committed independent act).

We are also satisfied that the trial court did not abuse its discretion in determining that the probative value of evidence of the Florida crime was not substantially outweighed by its prejudicial effect. This determination “calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” Bradshaw, 296 Ga. at 657-658 (3). Here, “[t]he similarity between the ... crimes and the facts relating thereto make the former [act] highly probative of [McCoy’s] intent.” United States v. Ramirez, 426 F3d 1344, 1354 (11th Cir. 2005). The trial court instructed the jury that the similar transaction evidence should be considered for the limited purpose of showing McCoy’s knowledge and intent and for no other purpose, and “the risk of undue prejudice to [McCoy] was reduced by the court’s limiting instruction.” Id. Given the circumstances, we cannot say that the trial court abused its discretion in finding that the probative value of the similar transaction evidence was not substantially outweighed by its prejudicial effect.

Moreover, it is axiomatic that (Citation omitted.) Dixon v. State, 320 Ga. App. 257, 264 (2) (b) (739 SE2d 737) (2012). In light of the evidence establishing McCoy’s guilt, including the pursuing officer’s identification, “we simply cannot conclude it highly probable that [the similar transaction evidence] contributed to the guilty verdict on the ... charges at issue [in this case].” Mangurn v. State, 308 Ga. App. 84, 88-89 (2) (706 SE2d 612) (2011).

harm, as well as error, must be shown for the improper admission of similar transaction evidence to justify reversal of a conviction. If it is highly unlikely that admission of the similar transaction evidence contributed to the verdict, then admission of the evidence is harmless.

Decided June 26, 2015.

Mary Erickson, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assis- , tant District Attorney, for appellee.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       McCoy was found not guilty of two counts of theft by receiving stolen property, hit and run, and Violation of the Georgia Controlled Substances Act (VGCSA).

       Damario McCoy pled guilty to robbery, two counts of theft by receiving stolen property, fleeing or attempting to elude a police officer, obstruction, and misdemeanor possession of marijuana.

       Because the similar transaction evidence was admissible for the permissible purpose of showing intent, we need not address the trial court’s findings that it was also admissible to show knowledge. Curry, 330 Ga. App. at 615 (1), n. 11.


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A15A0312.
    LEE v. THE STATE.
    (774 SE2d 703)
   ELLINGTON, Presiding Judge.

A Fulton County jury found Kevin Lee guilty of two counts of armed robbery, OCGA § 16-8-41; one count of aggravated assault with intent to rob, OCGA § 16-5-21 (a) (1) (2007); and one count of possession of a firearm during the commission of a felony, OCGA § 16-11-106. On appeal, Lee claims that the trial court erred in admitting the victims’ pre-trial and in-court identifications. For the reasons set forth below, we find no merit in this claim.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that around 6:00 p.m. on July 13, 2007, Lee and an accomplice robbed two college students. R. M. testified that he was in his Fulton County home working on a paper when he heard the door chime. Two men, whom the victims later identified as Lee and Larry Brown, walked into the house and instructed R. M., “[y]ou already know what it is, get on the floor.” When Brown pulled out a gun, R. M. got on the floor.

The second victim, C. M., who had been in his bedroom, walked out to find the two men, one of whom had a gun pointed at R. M.’s head. C. M. ran to retrieve his firearm, but he slipped on the floor as Brown pursued him. Brown fired a shot, which missed C. M. He then struck C. M. in the back of the head with his gun and dragged him to the living room, where he was forced to lie on the floor with R. M.

After asking C. M. and R. M. if they had any valuables, Brown and Lee took the victims to C. M.’s room and had them lie under a mattress. As C. M. was taken to his room, Brown gave the gun to Lee, who held it on R. M. Brown and Lee ransacked the house and ultimately took the victims’ cell phones and the keys to C. M.’s truck. Meanwhile, the third resident of the house was hiding upstairs in the bathroom with his girlfriend, who called the police. When Brown and Lee realized that the police had arrived, they fled out the back door of the residence.

When the responding officers arrived, they saw two men running out of the back of the house. One officer chased the men while the other officer spoke with the victims, who gave him a description of the suspects. The officer who chased the robbers almost caught up with them, but they jumped off a concrete wall and ran in different directions. The officer pursued one suspect, later identified as Lee, and, with the assistance of a back-up officer, arrested him in the parking lot of a nearby restaurant. Brown was apprehended a few minutes later by other officers. They also recovered the black handgun that Brown had hidden in the nearby brush.

The police brought Lee back to the victims’ home. As he was sitting in the back of the police car, C. M. and R. M. identified Lee as one of the robbers. The police also recovered two cell phones and a set of car keys from Lee, and C. M. and R. M. confirmed that the items belonged to them. The victims were then taken to see Brown, who had been injured jumping off the wall, and they identified him as the other robber. At trial, both C. M. and R. M. made an in-court identification of Lee as the man who entered their home and had held the gun on R. M.

Brown testified at trial as a witness for the State. According to Brown, he and Lee initially went to the victims’ home to buy marijuana, but instead they robbed them. Brown said that he shot his gun at the floor after C. M. started to run, that he pulled C. M. into the living room with R. M., and that he then gave the firearm to Lee to hold while he searched the house for money. According to Brown, he ordered the victims under the bed, after which he saw the police and both he and Lee fled.

After he was indicted, Lee filed a motion to suppress his pre-trial and in-court identifications. The trial court denied Lee’s motion to suppress R. M.’s identification testimony, but it granted the motion to suppress pre-trial identification evidence from C. M. because the State was unable to produce C. M. at the hearing to offer testimony.

Lee contends that the trial court erred in admitting his pre-trial and in-court identifications because the pre-trial identification procedure, in which Lee was presented to the victims while in the back seat of a squad car, was impermissibly suggestive and thereby created a substantial likelihood of irreparable misidentification. A one-on-one showup is suggestive, as the State concedes, although not necessarily impermissible. See Rogers v. State, 202 Ga. App. 595, 596 (1) (415 SE2d 49) (1992) (finding that “[o]ur appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense”) (citation and punctuation omitted). But even if we

assum[e] without deciding that the circumstances surrounding [Lee’s] identification rendered the showup impermissibly suggestive, the evidence is inadmissible only if under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.

(Citations and punctuation omitted.) Butler v. State, 290 Ga. 412, 415 (3) (721 SE2d 876) (2012). In determining whether there was a substantial likelihood of irreparable misidentification, factors to be considered include:

(1) the witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the accused; (4) the witness’s level of certainty at the confrontation with the accused; and (5) the length of time between the crime and the confrontation.

(Citations omitted.) McBride v. State, 291 Ga. 593, 594-595 (2) (732 SE2d 757) (2012). The ultimate issue is “whether under the totality of the circumstances, the identification is reliable.” (Citations and punctuation omitted.) Id. at 595 (2). “[I]n evaluating these factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence. Where evidence supports the trial court’s ruling, we will not disturb that ruling.” (Footnote omitted.) Jones v. State, 273 Ga. 213, 216 (2) (539 SE2d 143) (2000).

With respect to R. M., the evidence showed that he had the opportunity to view Lee in close proximity and in good light. His attention was focused on Lee as one of the two robbers. His identification of Lee, which occurred within 15 minutes after Lee fled the scene, was immediate and certain. R. M.’s description of Lee to the police, which was that he had a short haircut and was wearing all black, including black gloves, was somewhat general. However, Lee was spotted by officers fleeing through the back yard of the victims’ house. The police pursued him until he was captured. Therefore, he was not brought to the showup on the sole basis that he matched a generalized description of a man wearing black clothes. Compare Towns v. State, 136 Ga. App. 467, 468-469 (1) (221 SE2d 631) (1975) (Where the victim, who had little opportunity to observe his attacker, described his assailant as a man wearing a toboggan hat, and he was brought to the police station the next day and shown only the defendant, who was wearing a toboggan hat and had previously been arrested for speeding, the circumstances surrounding the showup were conducive to irreparable misidentification.). Considering the totality of circumstances, the evidence supports the trial court’s finding that R. M.’s identification testimony was admissible notwithstanding that the showup was suggestive. See Jones v. State, 273 Ga. at 216 (2) (Although the trial court found the pre-trial identification to be impermissibly suggestive, the trial court did not err in concluding there was no substantial likelihood of irreparable misidentification where witnesses had an opportunity to view the defendant under a bright street light, gave consistent descriptions to police, were certain of their identifications, and the initial identification occurred shortly after the crimes.); Tiggs v. State, 287 Ga.App. 291, 292 (a) (651 SE2d 209) (2007) (The victim’s identification of the defendant was admissible notwithstanding the showup, as the victim had ample opportunity to view the defendant, gave a substantially correct description, and demonstrated a high degree of certainty.); Johnson v. State, 209 Ga. App. 632, 633-634 (2) (434 SE2d 169) (1993) (On-the-scene confrontation, based on near immediate arrest, using description of the victim, supported trial court’s finding that there was no substantial likelihood of irreparable identification.).

Unlike in the case of R. M.’s testimony, Lee obtained a ruling that evidence of C. M.’s pre-trial identification would be suppressed. Thus, as to C. M., Lee argues both that the showup led to a substantial likelihood of irreparable misidentification and that the trial court erred in allowing C. M.’s identification testimony after ruling that the testimony would not be allowed.

Although the trial court granted Lee’s motion to suppress as to C. M., it did so only with respect to pre-trial identification evidence and only because the State had failed to produce C. M. to offer testimony at the hearing. To the extent that C. M. sought to suppress C. M.’s in-court identification, the trial court made no ruling, nor was it required to do so. See Clark v. State, 279 Ga. 243, 245 (4) (611 SE2d 38) (2005) (“[T]he trial court was not required to hold any pre-trial hearing” on the motion to suppress.); Moore v. State, 215 Ga. App. 626 (1) (451 SE2d 534) (1994) (“[I]t has repeatedly been held that the trial court is not required to entertain a pre-trial motion to suppress identification testimony.”) (citation and punctuation omitted). As Lee “did not object when [C. M.] identified him in court as the [robber]..., he has waived the right to object to the in-court identification[ ].” Barber v. State, 236 Ga. App. 294, 297 (2) (512 SE2d 48) (1999).

C. M.’s pre-trial identification was subject to the motion to suppress. However, the trial court did not find, and Lee does not show, that the evidence of C. M.’s pretrial identification infringed on Lee’s constitutional right to due process. See generally Neil v. Biggers, 409 U. S. 188, 196 (III) (93 SCt 375, 34 LE2d 401) (1972) (considering “the scope of due process protection against the admission of evidence deriving from suggestive identification procedures”). The circumstances leading to C. M.’s identification of Lee are substantially the same as that of R. M., which, as we found supra, were admissible notwithstanding the suggestive nature of the showup. The evidence at trial showed that C. M. had an ample opportunity to view Lee, his level of attentiveness to the persons who invaded his home was high, he identified Lee “instantly” at the showup, he gave a description of Lee to the police that was consistent with R. M.’s, and the length of time between the crime and the confrontation was minimal.

Further, even if we assume, without deciding, that, as in the case of a previously granted motion in limine, Lee was not required to object when the State elicited evidence of C. M.’s pre-trial identification, Lee did not simply fail to object. Rather, Lee argued to the jury that the showup identifications were suggestive in opening argument and then cross-examined C. M. at length about the pre-trial identification, establishing details such as that Lee had been in a cage within the police car and handcuffed. “A defendant who brings out the same evidence to which he objects cannot be heard to complain.” (Punctuation and footnote omitted.) Helton v. State, 268 Ga. App. 430, 432 (2) (602 SE2d 198) (2004). If Lee could complain that the State failed to comply with the order granting the motion to suppress, he cannot show prejudice because the other evidence of his identity was overwhelming. See Snider v. State, 200 Ga. App. 12, 13 (1) (406 SE2d 542) (1991) (If testimony as to the identification of the defendant at the showup should not have been allowed, any error was harmless in the context of the remaining identification testimony.). Accordingly, Lee shows no grounds for reversal.

Decided June 29, 2015.

Jennifer A. Trieshmann, for appellant.

PaulL. Howard, Jr., District Attorney, LoriL. Canfield, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       “In determining whether the trial court erred in denying the motion to suppress identification testimony, this court may consider the evidence adduced both at the suppression hearing and at trial.” (Citation and punctuation omitted.) Clark v. State, 279 Ga. 243, 245 (4) (611 SE2d 38) (2005).

       The trial court’s written order expressly extends only to the pre-trial identification, and the trial court clarified that this would be the case during the hearing.

       See generally Reno v. Reno, 249 Ga. 855, 856 (295 SE2d 94) (1982) (Where a motion in limine to suppress evidence is granted, the movant need not object when evidence encompassed by the motion is nevertheless introduced at trial.).


text:
    A15A0328.
    BROWN v. THE STATE.
    (774 SE2d 708)
   ELLINGTON, Presiding Judge.

A Walton County jury found Isaac Brown guilty of aggravated assault, OCGA § 16-5-21 (b) (2); possession of a firearm during the commission of a crime, OCGA § 16-11-106 (b) (1); and possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). Brown appeals from the denial of his motion for a new trial, contending that the trial court erred in admitting hearsay evidence and that his trial counsel was ineffective. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that, on November 14, 2011, Brown and his brother, Abraham, assaulted Mario Fambrough. Fambrough testified that he was standing outside his uncle’s home with a friend, talking on his cell phone, when the Brown brothers walked up to him. Both Fambrough and his friend, Jarvaris Brake, testified that the brothers pulled out handguns and pointed them at Fambrough. Brake fled inside the house while the brothers pistol-whipped Fambrough until he surrendered his wallet. Fambrough’s uncle testified that he saw two men beating his nephew but that he did not see their faces. As a result of the assault, Fambrough suffered facial lacerations and a swollen eye. Brown, who elected to testify in his defense, contended that he and Fambrough had gotten into a fight over a drug deal and that he had been unarmed.

After Fambrough had been treated for his injuries, the responding police officers took him into custody on an outstanding warrant for a probation violation. The police put Fambrough in a holding cell that was also occupied by Brown’s other brother, David, who had been arrested the day before and was not involved in the assault. Fambrough complained to David about what David’s brothers had done to him. Fambrough testified that, after he had been released from jail, David called him from the jail and told him that his mother would pay him to tell the police that his brothers were not involved in the assault. A recording of that conversation was admitted in evidence and played for the jury.

The State also presented the testimony of Antonio Phillips, a person who had been incarcerated in the same cell block in the Walton County jail with Brown while Brown was awaiting trial. Phillips testified that he knew Fambrough and the Brown brothers. He said that Fambrough had once hit him with a brick, and that Brown was aware that he and Fambrough had fought. He testified that Brown had approached him while they were in jail and had spoken with him briefly about Brown’s upcoming trial, telling Phillips that his lawyer would be contacting him. Afew weeks later, a trustee handed Phillips a letter addressed to “Young Gun,” which is Phillips’ nickname. The trustee said the letter was from “Trip,” which is Brown’s nickname. The trustee also pointed toward Brown, who was standing a short distance away. A corrections officer took the letter from Phillips before he could finish reading it. In his unsigned letter, Brown urged Phillips to testify that he had witnessed an altercation and to testify that Brown and his brother had been unarmed. The letter contained all the details Phillips would need to fabricate his eyewitness testimony: the date and time of the incident, the location, the names of all those present, and how the altercation had allegedly occurred. In the letter, Brown pleaded: “I need your help bad.... [The prosecution is] talking [a]bout a 30 do 18 [sentence]____I’ll see if my lawyer will come see you soon[.]”

1. Brown contends the trial court erred in admitting the recorded telephone call between David and Fambrough, arguing that David’s statements about his mother’s offer to pay Fambrough to tell the police that his brothers were not involved in the assault constituted inadmissible hearsay. The transcript shows that Brown made a general hearsay objection to the recording, which the court summarily overruled. Because the statements were nonhearsay, we find no error in the court’s ruling on the objection.

OCGA § 24-8-801 (c) provides: “ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Whether an out-of-court statement is hearsay depends on whether it is offered for its truth or merely for the fact that it was made. Where the alleged fact is only so if the substance of the statement is the truth, the statement constitutes hearsay. On the other hand, where the alleged fact may be so regardless of whether the statement is true or false, the statement is not hearsay.

(Citation omitted; emphasis supplied.) United States v. Webster, 649 F2d 346, 349 (III) (5th Cir. 1981). See also Graham v. State, 331 Ga. App. 36, 39 (2) (769 SE2d 753) (2015) (“[TJestimony did not constitute hearsay because the state did not offer the words for the truth of their content.”) (citation and punctuation omitted).

In this case, the statements are not hearsay because the State offered them for a purpose that did not require the jury to assume that the substance of the statements was true. Here, the evidentiary “facts” that the State offered the statement to prove are that David had conveyed to Fambrough an offer to buy his testimony and that Fambrough had rejected it. Those facts do not depend on whether David was telling the truth about whether he or his mother would actually pay Fambrough to give testimony favorable to Brown. Rather, David’s statements were significant because they had been made and because they were likely to have had an effect on the hearer, Fambrough. The jury could infer from the conversation that Fambrough was a more credible witness for having rejected the offer. Because the evidentiary value of the statements did not rest upon whether the declarant was being truthful or honest, the trial court did not err in overruling Brown’s general objection to the statements on hearsay grounds. See Graham v. State, 331 Ga. App. at 39 (2) (testimony concerning an out-of-court statement was not offered for its truth, but to explain its effect on those who heard the statement and their subsequent conduct, and was, therefore, admissible as nonhearsay). See also United States v. Hanson, 994 F2d 403, 406 (7th Cir. 1993) (“An out of court statement that is offered to show its effect on the hearer’s state of mind is not hearsay.”) (citations omitted).

2. Brown contends that his trial counsel was ineffective for failing to object on hearsay grounds to Phillips’ testimony that, when the prison trustee handed him the letter, the trustee pointed to Brown and said that the letter was from Brown. He argues that the trustee’s gesture and statement were the only evidence establishing that the letter was from Brown and that, had counsel interposed a hearsay objection, the letter would not have been authenticated and admitted in evidence.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”) (citation and punctuation omitted). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). As the appellate court, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

Pretermitting whether the trustee’s statement and gesture identifying Brown as the letter’s author constituted hearsay to which trial counsel should have interposed an objection, Brown can show no harm as a result of the failure to object because the letter was sufficiently authenticated by other admissible evidence.

The State was required to properly authenticate Brown’s letter as a condition precedent to its admissibility. OCGA § 24-9-901 (a). The State was required to present “sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be.” (Citation omitted.) United States v. Belfast, 611 F3d 783, 819 (VI) (C) (11th Cir. 2010). “Once that prima facie case is established, the evidence is admitted and the ultimate question of authenticity is decided by the jury.” Id. See also Williams v. State, 280 Ga. 584, 587 (2) (630 SE2d 370) (2006) (“Handwriting evidence is not required in every case, however, so long as there is other evidence, circumstantial or otherwise, to make a prima facie showing of authenticity.”) (footnote omitted). A document may be authenticated by “[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances [.]” OCGA § 24-9-901 (b) (4).

Even absent Phillips’ testimony as to the trustee’s statements and gestures indicating that the letter was from Brown, the State presented sufficient evidence establishing a prima facie case from which the jury could infer that the letter was from him. It is apparent from the contents of the letter — which included names, places, dates, times, and other details of the incident — that only someone with great familiarity with the incident could have written it. The letter was written in the first person and implored Phillips to help “us,” “the triplets,” which was the nickname for Brown and his brothers. That the author was Brown could be inferred from those details, as well as the statements: “[The prosecution is] talking [a]bout a 30 do 18 [sentence]. . . . I’ll see if my lawyer will come see you soon[.]” Brown had spoken to Phillips concerning his upcoming trial and told him that his lawyer would be contacting him soon, and those prior conversations were consistent with the statements in the letter. Also, when Phillips received the letter from the trustee, Brown was standing a short distance away, looking at Phillips. Brown was the only one of the three brothers incarcerated in Phillips’ cell block. Given this evidence, Brown has failed to establish that a hearsay objection would have resulted in the letter being excluded on the ground of insufficient authentication. See United States v. Mentor, 570 Fed. Appx. 894, 897 (II) (11th Cir. 2014) (A letter was held to be sufficiently-authenticated when the witness testified that the defendant, her ex-boyfriend, was the only person who would be sending her a letter, and the contents indicated that it was from him. It contained references to her, her brother, her best friend, and other key details leading her to identify the defendant as the author.); see also Foster v. State, 294 Ga. 383, 385 (3) (754 SE2d 33) (2014) (“Under all of [the facts adduced], it is very unlikely that anyone other than [Foster] had written the letter. Accordingly, the circumstances were sufficient to make a prima facie showing of authenticity”) (punctuation omitted); Williams v. State, 280 Ga. at 587 (2) (“Johnson testified that Williams threw the note at him while Johnson was near Williams’ cell, and that the note was consistent with prior conversations between Williams and Johnson. The note was addressed to ‘C-dog,’ which was Johnson’s nickname. Johnson, who was not an accomplice in the case, turned the note over to the sheriff. This evidence plainly authenticates the writing, and it was not error for the trial court to admit the note.”).

Decided June 29, 2015.

S. Cindy Wang, for appellant.

Layla H. Zon, District Attorney, W. Cliff Howard, Assistant District Attorney, for appellee.

Under the circumstances present in this case, even if Phillips’ testimony concerning the trustee’s statement and gesture indicating that Brown had written the letter constituted inadmissible hearsay, the erroneous admission of those statements was harmless when the jury would have been able to infer that Brown had written it from the sufficiently authenticated and admissible letter itself. Because the alleged hearsay was cumulative of other evidence of the letter’s authorship, it was without material effect on the verdict. See Skinner v. State, 318 Ga. App. 217, 219 (1) (733 SE2d 506) (2012) (admission of hearsay evidence harmless where it was cumulative of admissible evidence); Moody v. State, 277 Ga. 676, 680 (4) (594 SE2d 350) (2004) (accord). And “the failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel.” (Punctuation and footnote omitted.) Ashmid v. State, 316 Ga. App. 550, 558 (3) (b) (730 SE2d 37) (2012). Consequently, the trial court did not err in denying Brown’s motion for a new trial on ineffective assistance of trial counsel grounds.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       The State also indicted Brown for armed robbery, OCGA § 16-8-41, butthe jury acquitted him of that offense.

       Brown was tried in August 2013; therefore, the new Evidence Code applied to his trial. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1,2013, and shall apply to any motion made or hearing or trial commenced on or after such date”).

       The Supreme Court of Georgia recently noted that, “where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.” Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015). Additionally, in the event of any conflicting interpretations between the Eleventh Circuit and other federal circuit courts, we must follow the Eleventh Circuit as of January 1, 2013. Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015). Further, the Eleventh Circuit has adopted as binding precedent decisions made by the Fifth Circuit handed down on or before September 30, 1981. Bonner v. City of Prichard, 661 F2d 1206, 1209 (11th Cir. 1981) (en banc).

       OCGA § 24-9-901 (a) provides: “The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”


author: Dillard, Judge.

text:
    A15A0594.
    WELLS FARGO BANK, N.A. et al. v. MOLINA-SALAS.
    (774 SE2d 712)
   Dillard, Judge.

We granted an interlocutory appeal to Wells Fargo Bank, N.A. (‘Wells Fargo”) and Federal Home Loan Mortgage Corporation (“Freddie Mac”) to consider whether the trial court erred in denying their motion for summary judgment on Maria M. Molina-Salas’s claim for wrongful foreclosure. Because we conclude that Wells Fargo and Freddie Mac were entitled to summary judgment, we reverse.

The pertinent facts are undisputed. In April 2007, Molina-Salas obtained a loan and executed a promissory note in favor of Wells Fargo. She secured the note with a security deed to real property (the “Property”) that granted Wells Fargo a power of sale. The security deed was recorded in the deed book of Gwinnett County and contained a complete and accurate legal description of the Property, including a reference that it was specifically located in the 6th District of Gwinnett County.

Molina-Salas defaulted on the loan and, after issuing several demands that she pay the deficiency and bring the loan current, Wells Fargo sent notice in January 2011 that it intended to foreclose on the Property. The notice included a copy of the advertisement to be published in the legal organ for Gwinnett County for four consecutive weeks. The advertisement noted that Molina-Salas was in default under the terms of the note and security deed (which it referenced by deed book and page number), and further contained the legal description, address, and recording data, including the plat book and page number, of the Property. But due to a typographical error, the advertisement wrongly identified the Property as lying in the 5th, as opposed to the 6th, District of Gwinnett County. The description, address, and recording data were otherwise correct. After running for two weeks, the error in the advertisement was discovered, at which time it was corrected and the last two weeks of the advertisement accurately identified the Property as lying in the 6th District.

In March 2011, the foreclosure sale was conducted and Wells Fargo was the successful bidder. Wells Fargo subsequently conveyed the property to Freddie Mac. Molina-Salas filed the instant wrongful foreclosure action arguing, inter alia, that the typographical error in the property description of the advertisement that ran for two of the four weeks it was published rendered the foreclosure sale void and, further, that Wells Fargo’s failure to send her an amended copy of the advertisement once the error had been identified and corrected amounted to insufficient notice under the applicable notice statutes. The trial court denied Wells Fargo and Freddie Mac’s motion for summary judgment as to these two issues, and we granted their application for interlocutory appeal to consider whether the trial court erred in doing so.

At the outset, we note that summary judgment is proper when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law,” and we review the grant or denial of a motion for summary judgment de novo. With the foregoing in mind, we turn now to Wells Fargo and Freddie Mac’s enumerations of error.

1. To assert a viable claim for wrongful foreclosure, a plaintiff must establish a “legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.” The legal duty imposed upon a foreclosing party under a power of sale is to exercise that power fairly and in good faith.

Wells Fargo and Freddie Mac contend that the trial court erred in denying their motion for summary judgment on Molina-Salas’s wrongful-foreclosure claim because they exercised the power of sale fairly and in good faith, and the published advertisement substantially complied with the statutory requirements. Specifically, they argue that the foreclosure sale is not void as a matter of law simply because the advertisement they ran prior to that sale incorrectly identified the district in which the Property resides for two of the four weeks that it was published, and that, in any event, Molina-Salas’s claim otherwise fails because she did not present any evidence that bidding at the sale was chilled by the temporary error.

Molina-Salas argues, on the other hand, that Wells Fargo breached its duty to exercise the power of sale fairly and in good faith because the published advertisement twice identifying the Property as lying in the wrong district was defective as a matter of law. She maintains that this error (albeit temporary) renders the resulting foreclosure sale void and, in turn, all subsequent efforts to remove her from the Property unlawful. We disagree.

A nonjudicial foreclosure sale must be advertised in the same manner as that of a judicial foreclosure sale. OCGA § 9-13-140 (a) requires, in part, that the advertisement give a “full and complete [legal] description of the property to be sold.” But Georgia’s appellate courts have repeatedly emphasized that not every irregularity or deficiency in a foreclosure advertisement will void a sale. Rather, only if an advertisement fails to properly encompass those items required by OCGA § 9-13-140 (a) will it be deemed defective as a matter of law. And if the advertisement is not defective as a matter of law, “the errors in the advertisement will support a wrongful foreclosure claim [only] if the debtor can come forward with evidence that the defects chilled the bidding at the foreclosure sale, causing a grossly inadequate sale price.”

The relevant statutes do not otherwise define what constitutes a “legal description” under OCGA § 9-13-140 (a). The trial court nonetheless analogized the statutory requirements imposed when filing maps or plats with the county clerk, which require by way of description “[t]he county, city, town, or village, land district and land lot, and subdivision, if the property lies within a particular subdivision.” For purposes of this appeal, it is unnecessary for us to either approve or disapprove of the foregoing jurisprudential analogy or, for that matter, to outline the full spectrum of what will or will not constitute an adequate legal description under OCGA § 9-13-140 (a). In this case, we do nothing more than decline to hold that a published advertisement that mistakenly describes the subject property as lying in the 5th rather than the 6th District for two of the four weeks in which it ran fails as a matter of law to satisfy the “legal description” requirement of that statute. Not only did the advertisement accurately reflect the Property’s district for two of the four weeks it ran, but each published advertisement also contained an otherwise accurate description of the Property, its correct physical address, its recording data by plat book and page number, and the recording data of the security deed that contained in its text an accurate legal description of the Property. And it is well established that “reference in a foreclosure advertisement to extrinsic evidence such as official records constitutes ‘a sufficient key’ to correct a typographical error and show the precise location of the property.” Under these particular circumstances, to hold that the error rendered the advertisement defective as a matter of law would “substitute shadow for substance.” This, we will not do.

Likewise, Molina-Salas has neither argued nor presented any evidence that the error in the first two advertisements had any chilling effect on the bidding process or caused an inadequate selling price. And in the absence of evidence to the contrary, we will adhere to the principle that “[e]rrors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained.” Thus, because there are no facts discernible from the record which can “possibly lead to any other result than payment of the loan or sale of the land for the purpose of paying the debt,” we conclude that Wells Fargo and Freddie Mac were entitled to summary judgment on this ground.

2. Wells Fargo and Freddie Mac further assert that they were entitled to summary judgment on Molina-Salas’s claim that they failed to provide her adequate notice of the foreclosure sale. Molina-Salas contends that the failure to alert her to the error in the original advertisement and provide her with a second notice containing the corrected advertisement renders both the notice and the ensuing sale void as a matter of law. Again, we agree with Wells Fargo and Freddie Mac.

Molina-Salas’s argument is in furtherance of, and appears dependent upon, her contention that the advertisement itself was deficient as a matter of law. And as set forth in Division 1, we flatly reject that position.

Regardless, OCGA § 44-14-162.2 sets forth the necessary items that must be included in a debtor’s notice regarding the initiation of proceedings to exercise a power of sale in a security deed, and includes a requirement that the debtor be given a copy of the advertisement to be submitted to the publisher. But other than the inclusion of an advertisement containing a nonfatal typographical error, Molina-Salas makes no assertion that the notice lacked any of the required information mandated by OCGA § 44-14-162.2. Nor has she pointed to any authority or other evidence to support a finding that the description of the Property as lying in the incorrect district— one that she was not aware of until after the foreclosure sale had already been completed — harmed or otherwise impacted her in any way. Her claim, therefore, fails as a matter of law.

Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested,

Decided June 29, 2015.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, Dylan W. Howard, Daniel P. Moore, for appellants.

Smith Law, William J. Smith; Locke Lord, Alexandra M.Dishun, John H. Wlliamson, for appellee.

For all of the foregoing reasons, we reverse the trial court’s order denying summary judgment to Wells Fargo and Freddie Mac on Molina-Salas’s claim for wrongful foreclosure.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

        Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164) (2012) (punctuation omitted).

        See id.

        Racette v. Bank of America, N.A., 318 Ga. App. 171, 174 (1) (733 SE2d 457) (2012) (punctuation omitted); see also Calhoun First Nat. Bank v. Dickens, 264 Ga. 285, 286 (2) (443 SE2d 837) (1994).

        See OCGA § 23-2-114 (“Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.”).

        See Nexgen Cumming, LLC v. State Bank & Trust Co., 313 Ga. App. 715, 716 (722 SE2d 428) (2012) (“A nonjudicial foreclosure sale must be advertised in the same manner as a judicial foreclosure sale. That manner is set forth in OCGA §§ 9-13-140 (a) and 9-13-141...(citation omitted)); see also OCGA § 9-13-140; OCGA§ 9-13-141; OCGA § 44-14-162 (a) (“No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff’s sales in the county in which such real estate or a part thereof is located . . .”).

        See Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 372 (1) (601 SE2d 842) (2004) (“Not every irregularity or deficiency in a foreclosure advertisement will void a sale”); accord Oates v. Sea Island Bank, 172 Ga. App. 178, 179 (2) (a) (322 SE2d 291) (1984); Walker v. Northeast Production Credit Ass’n, 148 Ga. App. 121, 122 (2) (251 SE2d 92) (1978).

        Se. Timberlands, Inc. v. Sec. Nat. Bank, 220 Ga. App. 359, 360 (1) (469 SE2d 454) (1996) (“The minimum legal requirements of a foreclosure advertisement are prescribed in OCGA § 9-13-140 (a), and only a failure to properly include those items will render the advertisement defective as a matter of law.”); accord Racette, 318 Ga. App. at 175 (1) (a) (i).

        Racette, 318 Ga. App. at 175 (1) (a); see also Se. Timberlands, Inc., 220 Ga. App. at 360 (2) (“If a foreclosure advertisement is not defective as a matter of law, defects in it will prevent confirmation only if the factfinder determines those defects ‘chilled’ bidding and caused an inadequate selling price.”).

       OCGA § 15-6-67 (b) (2) (A); see also Ga. Comp. R. & Regs. r. 180-7-.02 (2) (“Any description written for conveyance or other purpose... shall include the general location of the tract or lot with sufficient accuracy such that the tract can be readily located on the ground. The land lot, district, section, militia district number (in Headright Grant areas), city (if known to be within the city limits) and county shall be called out in said description.”).

        See Deljoo v. SunTrust Mortgage, Inc., 284 Ga. 438, 440 (668 SE2d 245) (2008) (holding, in the context of a conveyance, that “[i]t is only when a description is manifestly too meager, imperfect, or uncertain to serve as adequate means of identification that the court can adjudge the description insufficient as a matter of law” (punctuation omitted)); Smith v. Wilkinson, 208 Ga. 489, 493-94 (2) (67 SE2d 698) (1951) (“The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable, but when its descriptive averments are so indefinite and uncertain that no particular tract or quantity of land is described thereby or pointed out with certainty by the instrument itself, the description must be held defective and therefore insufficient to pass title.” (citation omitted)); White v. Plumbing Distributors, Inc., 262 Ga. App. 228, 230 (1) (585 SE2d 135) (2003) (holding that, under the Statute of Frauds, “[a] description will be insufficient [as a matter of law] if it is indefinite to the degree that no particular tract of land is identified; nevertheless, a description which is vague will be sufficient if its precise location may be determined upon competent parol evidence”).

        See Ceasar v. Wells Fargo Bank, N.A., 322 Ga. App. 529, 531 (1) (744 SE2d 369) (2013) (holding that “a typographical error in a security deed does not necessarily invalidate the legal description” when the deed also referred to the property’s physical address); Heritage Creek Dev. Corp., 268 Ga. App. at 372 (1) (holding that a foreclosure advertisement’s property description that included two unavailable subdivision lots was not defective as a matter of law); see also Racette, 318 Ga. App. at 175-76 (1) (a) (i) (holding that a published advertisement that incorrectly indicated that the property being foreclosed was subject to a senior lien was not deficient as a matter of law).

        Williams v. S. Cent. Farm Credit, ACA, 215 Ga. App. 740, 742 (2) (452 SE2d 148) (1994); see also Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 85 (169 SE 337) (1933) (syllabus of the court) (“The precise reference to the particular place in a public record where full information as to a fact of importance can be found is the equivalent of the statement of such fact as can be accurately ascertained and authoritatively established by such record.” (punctuation omitted)).

        Donalson, 177 Ga. at 91 (1) (“It is of prime importance in the administration of justice that courts should adhere to substance instead of shadow.”).

       Williams, 215 Ga. App. at 742 (2) (rejecting appellant’s claim that the two of four advertisements incorrectly substituting “southeast” for “southwest” in describing an outparcel voided the sale and supported a claim for wrongful foreclosure because “[tjhere was no evidence that any prospective purchaser was confused” by the errors); see also Heritage Creek Dev. Corp., 268 Ga. App. at 372 (1) (affirming grant of summary judgment to hank on debtor’s claim for wrongful foreclosure despite the inclusion of two unavailable lots in the advertisement’s property description because debtor “failed to show in any particular how the end result would have been different had the [bank] not included in the advertisement descriptions of the lots which had already been sold”); Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (confirming foreclosure because debtor “failed to show by the record how the citation [in the advertisement] to page 3 rather than page 2 of the deed hook would chill the sale and cause the property to be bid at less than its fair market value ...”); Oates, 172 Ga. App. at 179 (2) (a) (confirming foreclosure despite error in advertisement listing the incorrect plat book because of evidence that it caused “no difficulty in locating the property using the description in the legal advertisement”).

        Donalson, 177 Ga. at 91 (1).

        See OCGA § 44-14-162.2 (a), which, in pertinent part, provides: to the property address or to such other address as the debtor may designate by written notice to the secured creditor.

        See OCGA § 44-14-162.2 (b).

        See Wright v. Barnett Mortgage Co., 226 Ga. App. 94, 96 (2) (485 SE2d 583) (1997) (holding that notice of foreclosure that failed to provide a reinstatement balance was not defective in the absence of harm caused by the omission).

       To the extent that Molina-Salas asserted a claim for wrongful eviction based upon the same arguments considered in this opinion, Wells Fargo and Freddie Mac were entitled to summary judgment on that claim as well.


text:
    A15A0675.
    BUSBY v. THE STATE.
    (774 SE2d 717)
   BARNES, Presiding Judge.

A jury convicted Josh Busby of two counts of aggravated battery, aggravated assault, and cruelty to children in the first degree. Following the denial of his motion for new trial, he appeals, arguing that the trial court erred in failing to merge the two aggravated battery charges, and then in failing to merge the aggravated assault charge into the merged battery charges. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation omitted.) Hernandez v. State, 317 Ga. App. 845 (733 SE2d 30) (2012). So viewed, the evidence shows that when Busby and his girlfriend brought their 11-week-old daughter to the emergency room on Saturday, February 9, 2013, the infant had extensive bruises all over her body, her skull was fractured on both sides, and she was having seizures. A physician who was qualified as an expert in assessing abuse and intentional injury to children testified that the baby had suffered a “massive head injury” and her brain was bruised, bleeding, and swollen. While the fractures would heal, the injury to the brain caused cells to die off, and the physician expected long-term deficits, given all of the baby’s injuries, although she could not be tested cognitively until she grew older.

The skull fractures were caused by two separate impacts or were a “stomping injury,” and bruising revealed that the baby had been hit on the head at least seven times. The physician thought the baby had been “beaten badly” and could think of no accidental force that would account for all of her injuries. It had required “a lot” of force to cause the skull fractures, which could not have been caused by falling off someone’s lap, out of a bassinet, or even down several stairs.

A radiologist who saw the baby at the ER testified for the defense that one of the two fractures in the skull showed some healing and thus had occurred four to seven days previously, but agreed that the injuries could not have been caused by a three-foot fall.

Other evidence established that the baby had been born prematurely and remained in the hospital for about two months. After she was released, Busby, the baby, and the baby’s mother lived with the maternal grandparents for two or three weeks, and on February 1, 2013, they moved to a rental RV or travel trailer that was parked in their landlady’s back yard. The maternal grandmother testified that before the February 1 move, the baby had no injuries, bruises, marks, or cuts, but when she saw the baby a few days later, the baby had a “blood bruise” around her eye, that was “real dark red.” Busby said the baby’s 18-month-old brother had “got ahold to her,” and that he had given the boy a whipping for it. The mother’s sister testified that when she went to pick up the baby from the back room later that same day, she had a black eye. When the sister asked what happened, the only explanation she got was from Busby, who said, “We left [the baby] back there, [because] we didn’t want people to think we were abusing our kids.”

The baby’s mother was indicted on the same charges as Busby but pled guilty to two counts of cruelty to children in the second degree, one for failing to seek prompt medical attention and another for allowing the child to develop severe diaper rash. She testified that she had been taking narcotic medications for chronic health issues and that when she became pregnant unexpectedly her obstetrician sent her to a methadone clinic for treatment. After the baby was born, she testified, she was still in a lot of pain, and Busby interacted more with the children than she did, although they argued daily. She woke to the baby crying a few days after they moved to the travel trailer, and found Busby holding the baby. Busby said, “Look what he done,” talking about their son, and the mother saw red marks on the baby’s forehead and eyes. She thought their son had flung his pacifier at the baby or something and did not suspect that Busby had done anything.

The mother’s cousin testified that the baby had three bruises on her forehead the next day, Thursday, and the corners of her eyes were red, and was told that the baby’s brother had gouged the baby’s eyes while trying to lift her out of her crib. The next day, Friday, the bruises were lighter and the mother said the baby was okay and did not need to be looked at, but the cousin took a picture of the baby because she was not convinced that the brother had caused the injuries, and “in case anything further happened, there [would be] some sort of evidence that it was not the first time[,] that it had happened before.” Busby asked the cousin to delete the photograph, but instead she showed him a copy in black and white that did not show the marks as much.

The following day, Saturday, the cousin took the baby home with her and discovered that the baby’s head was swollen and “her eyes were locked to the opposite side.” She called the mother and told her she needed to come take the baby to the hospital right away because something was wrong, so Busby and the mother retrieved the baby from the cousin. Busby put the baby in the car and said he was “going to haul ass there” to the hospital, but when the cousin called the hospital, the baby was not there, so she drove to the camper to find the baby lying on the bed with an ice bag on her head.

The mother was “distraught” and crying that the baby needed to go to the hospital, but Busby kept the baby in his arms and kept saying she was going to be okay. Then the baby threw up, and the cousin told Busby that if he did not take the baby to the hospital he would be dealing with a murder case, not just a child abuse case. When the cousin threatened to call 911, Busby finally “got mad,” put the baby in the car, and drove her and the mother to the hospital. The cousin followed closely behind, and when they pulled up to the hospital, the cousin grabbed the baby and took her inside while Busby and the mother argued about whether Busby was coming inside or not.

Busby, who was 24, testified that both he and the baby’s mother had been addicted to narcotics and had decided to go to a methadone clinic for treatment about a month before the baby was born. They had to pay a fee, speak to a counselor weekly, attend classes, and go to the clinic daily for that day’s dose of methadone. The baby was born prematurely with a methadone addiction, which the physician explained had caused some feeding and growing issues but did not contribute to the later injuries. Once the baby was released from the hospital, the three stayed with the mother’s parents until they found the camper to rent. They went to the methadone clinic daily with the mother’s cousin and her husband, then ate breakfast at the cousin’s house, and then returned to the camper and watched television.

On Wednesday morning, Busby said he and the mother heard a scream and found their son with his hand around the baby’s “eye area.” When they saw marks or bruises, they “got scared” and took the children to the mother’s parents’ house and explained what had happened. The mother’s mother told them to take the baby to the hospital if things got worse. Then at 6:00 a.m. Saturday, Busby said, he opened the camper door while holding the baby and dropped her down the stairs when he turned to grab his son. He examined her and she was crying but it did not look like anything had “popped,” so he did not tell the mother what had happened, he said. He testified that as the day went on, the marks on the baby became more visible, and when he picked the baby up from the cousin’s house, he and the mother both decided not to take her to the hospital for reasons he could not articulate, except to say that he had been under the influence of methadone. When he did finally take her to the hospital, he did not tell them he had dropped her out of the front door of the camper.

1. Although Busby does not challenge the sufficiency of the evidence, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Busby argues that the trial court erred in failing to merge Counts 1 and 2, both of which charged him with aggravated battery under the Family Violence Act. The State responds by first asserting that Busby waived his right to argue merger as he conceded at trial that none of the counts merged, and then by contending that it had introduced ample evidence that the baby’s injuries were sustained as a result of separate attacks.

(a) As Busby correctly argues in his reply brief, although his trial counsel stated at sentencing that the counts do not merge, the issue is not precluded from appellate review. A defendant may not be legally convicted of a crime that is included as a matter of law or fact in another crime for which the defendant also stands convicted. OCGA § 16-1-7 (a). “[A] judgment of sentence is void where it imposes an illegal sentence, i.e., a sentence that the law does not allow, and . . . the illegality of such a judgment is not a waivable issue.” (Citation omitted.) Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014) (sentence in which trial court erroneously merged convictions vacated even though neither party appealed sentencing errors). See also Wells v. State, 294 Ga. App. 277, 279 (1) (668 SE2d 881) (2008) (“[Fjollowing a trial, convictions and sentences for offenses which are included in others are void and may not be waived by failure to raise the issue at trial.”). Therefore Busby has not waived his right to raise this issue on appeal for failing to raise it in the trial court.

(b) As to the merits of Busby’s merger claim, generally, if “one course of conduct violates one criminal statute in several ways described in the statute, a defendant is guilty of only one crime.” (Citations omitted.) Spears v. State, 296 Ga. 598, 601-602 (2) (769 SE2d 337) (2015). The question, then, is whether Busby committed multiple acts for which multiple sentences may be imposed.

The question of multiple punishments (as opposed to multiple prosecutions) for the same criminal conduct is addressed under the rubric of substantive double jeopardy. Whether multiple punishment is permissible requires examination of the legislative intent underlying the criminal statute. It is for the legislature to determine to what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished. Typically, the question is whether the same conduct may be punished under different criminal statutes. In that situation, it is appropriate to apply the . . . “required evidence” test However, a different question is presented here: whether a course of conduct can result in multiple violations of the same statute. The United States Supreme Court has held that this question requires a determination of the “unit of prosecution,” or the precise act or conduct that is being criminalized under the statute.... Accordingly, the starting point must be the statute itself.

(Citation, punctuation and footnotes omitted.) State v. Marlowe, 277 Ga. 383, 383-384 (1) (589 SE2d 69) (2003).

Pursuant to OCGA § 16-5-24 (a), “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” Based on the plain language of the statute, the act or conduct that is prohibited by OCGA § 16-5-24 (a) is “maliciously causing] bodily harm to another.” Thus, under the facts of this case, each act causing malicious bodily harm to the baby forms a “unit of prosecution” under OCGA § 16-5-24 (a). See Nosratifard v. State, 320 Ga. App. 564, 571 (2) (740 SE2d 290) (2013) (each unauthorized act of texting victim in violation of condition of bond order is separate act of aggravated stalking).

Busby was charged in Count 1 with maliciously causing bodily harm to the baby by rendering her skull useless and was charged in Count 2 with maliciously causing bodily harm to the baby by seriously disfiguring her head. If there were no evidence that the battery occurred in a manner other than in a single transaction, with no “deliberate interval” separating any of the blows, only a single verdict for aggravated battery could stand, and these two offenses would merge as a matter of law. Compare Jeffrey v. State, 296 Ga. 713, 717-718 (3) (770 SE2d 585) (2015) (holding that four aggravated assault charges based on a single shooting incident merged into one, absent evidence that the shots were fired between deliberate intervals).

However, the evidence in this case was sufficient for a jury to determine that the baby was battered more than once, in separate incidents. The expert physician testified that after the blow to the baby’s head that fractured her skull and caused her brain to swell, the baby would not have acted normally, and both parents testified that the baby was acting normally until the day they finally took her to the ER. Additionally, the expert testified that the swelling caused permanent damage to the baby’s brain, thus permanently rendering some brain cells useless. The maternal grandmother testified that she saw marks on the baby’s forehead a few days before she was taken to the ER, and the cousin took photographs of the damage to the baby’s face the day before she was taken to the ER. Even Busby testified that the marks appeared before he dropped the baby out the front door onto the ground. This evidence is clearly sufficient for a jury to determine beyond a reasonable doubt that the batteries occurred on separate occasions rather than during a single transaction, and therefore the offenses do not merge as a matter of law.

(c) Finally, Busby argues that the trial court erred in failing to merge Count 3, aggravated assault with intent to murder, into the aggravated battery convictions. Count 3 charged Busby with the offense of aggravated assault of the baby with the intent to murder her (also alleging the offense was committed between parents and child, which under OCGA § 16-5-21 (k) raises the minimum sentence from one year to three).

When the same act or transaction violates two statutes, we apply the “required evidence” test adopted in Drinkard v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006), to determine whether one crime is included in the other under OCGA § 16-1-6 (1).

Under the “required evidence” test... the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

(Punctuation and footnote omitted.) Id. at 215.

Busby argues that the only distinction between the aggravated battery offenses and the aggravated assault offense is his mens rea, the intent to murder, and that his intent was not an additional “fact,” but rather an inference the jury must draw from the evidence. Consistent with his previous enumeration, he contends that the State failed to establish that he committed multiple criminal acts and argued that the same injuries were used to prove both the assault and the battery. We disagree.

[A] ggravated assault with intent to murder required proof of a fact — the intent to kill — that aggravated [battery] did not, and aggravated [battery] required proof of a fact —- [the baby’s skull was rendered useless and the baby’s face was disfigured] —that aggravated assault with intent to murder did not.

Decided June 29, 2015.

Tyler R. Conklin, for appellant.

Lee Darragh, District Attorney, Hugh M. Hamilton, Assistant District Attorney, for appellee.

Gipson v. State, 332 Ga. App. 309 (7) (b) (772 SE2d 402) (2015) (physical precedent only).

The trial court did not err in sentencing Busby separately for aggravated assault with intent to murder, as well as two counts of aggravated battery.

Judgment affirmed.

McMillian, J., concurs. Ray, J., concurs in Divisions 1, 2 (a) and 2 (b) and in the judgment.

       To explain its holding in Jeffrey, the Supreme Court included the following elucidation:
      See Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427) (2009) (“[wjhen a victim suffers multiple wounds inflicted in quick succession, each infliction of injury does not constitute a separate assault”). Cf. Thomas v. State, 292 Ga. 429 (5) (738 SE2d 571) (2013) (aggravated assault with intent to rob does not merge into aggravated assault with a deadly weapon, because each requires proof of an element that the other does not, see OCGA § 16-5-21 (b) (1), (2)); Jones v. State, 285 Ga. App. 114 (1) (645 SE2d 602) (2007) (aggravated assault with a knife that occurred downstairs at the victim’s house did not merge with aggravated assault with a gun that occurred upstairs).

        Jeffrey, 296 Ga. at 718 (3).