author: Dillard, Judge.

text:
    A11A2246.
    MASOOD v. THE STATE.
    (722 SE2d 149)
   Dillard, Judge.

Following a jury trial, Naveed Masood was convicted of one count of driving under the influence to the extent that he was a less-safe driver (DUI less-safe) and acquitted by the jury of failing to maintain his lane. On appeal, Masood argues that the trial court erred in denying his motion for “judgment notwithstanding the verdict” because the jury’s acquittal on the second count resulted in a fatal variance between the State’s accusation for DUI less-safe and the theory under which he was convicted. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that on June 25, 2010, an officer with the Doraville Police Department DUI Task Force purportedly observed Masood’s vehicle committing a variety of moving violations. Specifically, the officer testified that Masood’s vehicle straddled two lanes, drifted into a turn lane, made a wide turn, and then swerved. And shortly thereafter, the officer initiated a traffic stop.

Upon approaching Masood’s vehicle, the officer detected an odor of alcohol and noticed that Masood’s eyes were red and watery. And when questioned as to whether he had consumed any alcohol that day, Masood admitted to drinking one beer. The officer then asked Masood to step outside of the vehicle to the rear so that he could evaluate whether Masood still smelled of alcohol after being separated from the passengers. Masood complied, and the officer detected the scent of alcohol about Masood’s breath and person from as far away as three feet.

Thereafter, the officer administered two field-sobriety tests—the Horizontal Gaze Nystagmus (HGN) and the walk-and-turn—and Masood exhibited clues of impairment on each. After Masood indicated that he had an injured knee, the officer decided not to administer the one-leg-stand test and instead administered the portable alco-sensor test, which returned a result positive for alcohol consumption. And when the officer again asked Masood how much alcohol he had consumed, Masood changed his initial response from one to three beers. Masood was then taken into custody and read Georgia’s Implied Consent law, but he refused to take the state-administered test.

Masood was thereafter tried by a jury that, after hearing the testimony of the arresting officer and viewing a video from the officer’s dash-cam, convicted him of DUI less-safe but acquitted him of a charge for failing to maintain lane. This appeal follows.

At the outset, we note that “[o]n appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict.” And we do not “weigh the evidence or determine witness credibility,” but only determine whether the evidence was sufficient for the trier of fact to have “found the essential elements of the crime beyond a reasonable doubt.” With these guiding principles in mind, we turn now to Masood’s enumeration of error.

Masood’s sole argument on appeal is that he was convicted of DUI less-safe “based upon some evidence which was not consistent with the State’s theory as setforth [sic] in the accusation” because “the evidence presented by the State to prove its theory that [Masood] was a less safe drive [r] was based primarily on the fact, according to [the officer], that [Masood] failed to maintain his lane of travel five times.” Thus, Masood argues that “the trial court erred by failing to grant [his] motion for judgment notwithstanding the verdict.” We disagree with this contention for a number of reasons.

To begin with, we note that Masood never moved for a directed verdict on the counts for DUI less-safe or failure to maintain lane. After the jury returned a guilty verdict as to the DUI less-safe charge and a not-guilty verdict as to the failure-to-maintain-lane charge, Masood argued that the trial court should not enter the guilty verdict as to the DUI less-safe count because the basis for that count was Masood’s initial failure to maintain his lane. Thus, according to Masood, there was a fatal variance between the State’s theory throughout the trial and the alternative theory upon which the jury must have based its conviction.

We further note that despite Masood’s description of his post-verdict motion as being one for judgment notwithstanding the verdict, “[n]o statutory provision for judgment n.o.v. exists in the statutory criminal law of Georgia” and our Supreme Court has “declined to create such a remedy judicially.” Indeed, OCGA § 17-9-1 permits a defendant “to seek a directed verdict of acquittal only during trial.” Thus, because JNOV is not a remedy available in a criminal case, “a defendant’s remedy is a motion for a new trial.”

Assuming that we deem Masood’s post-verdict motion to be a motion for new trial, it is, nevertheless, wholly without merit. Although Masood maintains that he is not making an “inconsistent verdict” argument, this is in actuality what he argues on appeal. However, Georgia does not recognize the inconsistent-verdict rule. Instead, our courts recognize that “[a] conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions . . . .” Therefore, we have previously held that a jury’s acquittal on a traffic charge for failure to maintain lane “cannot be a basis for attacking the guilty verdict on less-safe DUI.”

In sum, because the inconsistent-verdict rule has been abolished in Georgia, “the question becomes not whether an acquittal on one charge necessitates acquittal on another charge, but whether the evidence viewed in favor of the conviction was sufficient to support the guilty verdict.” And here, the evidence—as detailed supra—was sufficient to convict Masood of DUI less-safe.

Decided January 12, 2012.

Benjamin A. Davis, Jr., for appellant.

Sherry Boston, Solicitor-General, Sri H. Digumarthi, Assistant Solicitor-General, for appellee.

Accordingly, for all the forgoing reasons, we affirm Masood’s conviction.

Judgment affirmed.

Mikell, C. J., and Boggs, J., concur.

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 40-6-48.

        See, e.g., Stone v. State, 248 Ga. App. 190, 190 (546 SE2d 787) (2000).

       Masood was previously ordered to recast his brief after submitting a brief that failed to comply with Court of Appeals Rule 1 (c) regarding font-type and size or with Rule 24 (e) regarding the numbering of pages. Although Masood promptly complied with this Court’s order, we now note that his brief does not contain citations to the record, which is a violation of Court of Appeals Rule 25 (a) (1). Although such deficiency is usually deemed an abandonment of the claimed error, we will “exercise our discretion and review the evidence in this case based on the record citations in the State’s brief.” Meyers v. State, 249 Ga. App. 248, 248, n.4 (547 SE2d 781) (2001). We take this opportunity to remind Masood, however, that “compliance with our rules is not discretionary, but mandatory.” Warren v. State, 232 Ga. App. 488, 488 (1) (502 SE2d 336) (1998).

        Stone, 248 Ga. App. at 190.

        Id.

       Masood successfully moved for a directed verdict on an open-container charge.

        Rhyne v. State, 209 Ga. App. 548, 550 (1) (434 SE2d 76) (1993); see also Wilson v. State, 215 Ga. 775, 775 (1) (113 SE2d 607) (1960) (holding that “the rule providing for entering a judgment notwithstanding the verdict. . . relates solely to pleading, procedure, and practice in the trial of civil actions”).

        Rhyne, 209 Ga. App. at 550 (1); see also Wilson, 215 Ga. at 775-76 (1) (“There being no provision of law for the court to entertain a motion of not guilty notwithstanding a judgment of guilty, this assignment is without merit.”).

        Stancil v. State, 155 Ga. App. 731, 734 (7) (272 SE2d 511) (1980); see also Russell v. State, 155 Ga. App. 555, 555 (2) (271 SE2d 689) (1980) (“A motion for judgment notwithstanding the verdict is not appropriate in a criminal case and when made in the alternative with a motion for new trial, amounts to no more than the latter.”).

        See Mullady v. State, 270 Ga. App. 444, 447 (2) (606 SE2d 645) (2004) (explaining that an inconsistent verdict rule “would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count” (punctuation omitted)).

        Id.

        Id. (punctuation omitted).

        Renkiewicz v. State, 283 Ga. App. 692, 694 (3) (642 SE2d 384) (2007); see also Smith v. State, 265 Ga. App. 756, 757 (2) (596 SE2d 13) (2004) (finding defendant’s argument that conviction for per se DUI and acquittals on less-safe DUI and improper lane change resulted in inconsistent verdicts to be without merit); Mullady, 270 Ga. App. at 447 (2) (“The fact that the jury acquitted [the defendant] on the speeding charges cannot form a basis for challenging the factual findings underlying the jury’s verdict on the DUI count.”).

        Day v. State, 242 Ga. App. 781, 782 (1) (531 SE2d 357) (2000); see also Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986) (abolishing the inconsistent verdict rule in Georgia).

        See, e.g.,Jaffray v. State, 306 Ga. App. 469, 471-72 (1) (702 SE2d 742) (2010) (sufficient evidence of DUI less-safe when defendant was observed speeding, smelled of alcohol, had watery and bloodshot eyes, and officer opined that defendant was a less-safe driver); Jacobson v. State, 306 Ga. App. 815, 816 (1) (703 SE2d 376) (2010) (sufficient evidence of DUI less-safe when defendant failed to dim bright headlights, smelled of alcohol, had watery eyes, admitted to wrecking motorcycle earlier, admitted to consuming alcohol, and exhibited clues of impairment on field sobriety tests); Stone, 248 Ga. App. at 192 (1) (“[The officer’s] testimony about his observations of [defendant], coupled with his opinion that she was less safe to drive, constituted sufficient evidence to authorize the trial court’s finding of guilt.”); see also Renkiewicz, 283 Ga. App. at 693 (1); Smith, 265 Ga. App. at 757 (1); Mullady, 270 Ga. App. at 447-48 (2).


source: Caselaw Access Project

author: Mikell, Chief Judge.

license: Public Domain

text:
    A11A2379.
    MILLER v. THE STATE.
    (722 SE2d 152)
   Mikell, Chief Judge.

Keith Miller appeals from the trial court’s denial of his motion to dismiss for failure to provide a speedy trial in violation of his rights under the state and federal constitutions. For the reasons that follow, we affirm.

Viewed in the proper light, the record and transcripts show that, while playing a game of poker at a local bar, Miller was seated near Timothy Allen and Chaz Suddreth, among others. At some point in the game, Allen and Miller disagreed about the winner of the hand and began to argue. Miller stood up, pulled out his gun, and shot Allen several times.

Miller was arrested on April 16, 2008, and was charged with the offenses of aggravated assault, possession of a firearm by a convicted felon and possession of a firearm during the commission of a felony. This case was tried before a jury on April 26, 2010, and a mistrial was declared on April 27, 2010, after the jury was unable to reach a verdict. Miller then filed a motion for recusal, which was granted on May 3, 2010. On April 29, 2011, Miller filed a motion to dismiss the indictment due to lack of a speedy trial. His motion was denied on June 7, 2011.

1. Miller contends that the trial court erred in failing to grant the motion to dismiss for failure to provide a speedy trial. Every constitutional speedy trial claim is subject to a two-tiered analysis as set forth in the United States Supreme Court decisions Barker v. Wingo and Doggett v. United States. As for the first tier of the analysis, it must be determined if the delay in question is long enough to be considered presumptively prejudicial. If not, there has been no violation of the constitutional right to a speedy trial, and the second tier of analysis is unnecessary. If, however, the delay is determined to be presumptively prejudicial, then the court must address the second tier of analysis by applying a balancing test with the following factors being considered:

(1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. The existence of no one factor is either necessary or sufficient to sustain a speedy trial claim, and a trial court’s findings of fact and its weighing of disputed facts will be afforded deference on appeal. We review the trial court’s ruling for abuse of discretion.

In the present case, “the relevant time frame for purposes of the motion to dismiss on constitutional speedy trial grounds is from the date of mistrial through the date the motion was denied.” That delay is a little over one year and one month long. This Court has found a delay approaching one year to meet the threshold presumption of prejudice, and so an application of the full Barker-Doggett test is warranted.

2. (a) Length of Delay. The first factor in the Barker-Doggett analysis requires “consideration of the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” The trial court in this case did not evaluate this factor under an analysis separate from the threshold inquiry. However, this Court has held in cases similar to the instant case that “inasmuch as the trial court has effectively weighed this factor in appellant’s favor, it did not abuse its discretion.” Accordingly, we find no abuse of discretion.

(b) Reason for Delay. The trial court found that the delay in bringing the case to trial was not attributable to deliberate actions by either party, and weighted this factor slightly against the state. The trial court found that the delay was caused by the court’s internal administrative delays incurred when granting the recusal motion, that the parties were still in plea negotiations, and that a snow storm disrupted the first scheduled hearing. Additionally, the trial court noted that because of the court’s calendar, the defense agreed to having the case placed on the May 3, 2011, trial calendar. The government is responsible for bringing a defendant promptly to trial, and this “includes all state actors, even trial and appellate court judges.” Therefore, “[t]he relevant inquiry for purposes of this factor is not whether the prosecutor or the accused bears more responsibility for the delay, but whether the government or the criminal defendant is more to blame for that delay.” However, because there is no suggestion that the state was acting in bad faith in delaying the trial, this factor does not weigh as heavily against the state. Accordingly, the trial court did not abuse its discretion in weighing this factor only slightly against the state.

(c) The Defendant’s Assertion of the Right to a Speedy Trial. Because a defendant may benefit by delaying his trial, a defendant has a responsibility to assert his right to a speedy trial in a timely manner, and a failure to do so weighs heavily against him.

The trial court weighed this factor against Miller, citing the fact that Miller never filed a trial demand, and that it appears that his counsel was actively engaged in negotiations with the state about the entry of a plea and then agreed to the placement of the case on the May 3, 2011, pretrial calendar.

Although Miller did not file a statutory demand for speedy trial pursuant to OCGA § 17-7-170, he was not required to do so in order to prevail on his speedy trial claim. Miller argues that he effectively asserted his right to a speedy trial by announcing ready for trial at every trial calendar. However, “such action[ ] cannot be construed as an assertion of the right to a speedy trial under our analysis.” Accordingly, the trial court did not abuse its discretion in weighing this consideration heavily against Miller in the Barker-Doggett balancing process.

(d) Whether the Accused Suffered Prejudice as a Result of the Delay. The fourth and final factor is the inquiry into prejudice to the defendant. The concept of “prejudice” in this context is not limited to consideration of the likely effect the pretrial delay had or might have on the ultimate outcome of the trial. Rather, the constitutional right to a speedy trial is designed to protect three interests, and it is those three interests we evaluate in examining the prejudice component: (i) preventing oppressive pre-trial incarceration; (ii) minimizing anxiety and concern of the accused; and (iii) most importantly, limiting the possibility of impairment of the defense.

As to the first two factors, the trial court found that there was no oppressive pretrial incarceration and that Miller did not experience any undue anxiety or concern.

Finally, with regard to impairment to his defense, Miller must prove that the delay “prevented the presentation of an adequate defense that would have otherwise been available.” Miller contends that he is prejudiced by the fact that Chaz Suddreth, a witness in the original trial, can no longer be found. The trial court found that this factor weighed against Miller because Suddreth testified and was subject to cross-examination in the first trial, and such testimony could be presented in further proceedings. Additionally, the trial court noted that the substance of Suddreth’s testimony is confirmed by footage on a surveillance videotape.

Decided January 12, 2012.

Rodney A. Williams, for appellant.

Robert D. James, Jr., District Attorney, Otobong O. Ukpong, Assistant District Attorney, for appellee.

The fact that a witness is missing, “standing alone, is not sufficient to show prejudice. . . . There must be some correlation between the witnesses’ . . . unavailability and the delay, and [Miller] must show that the missing witness would have supplied material evidence for the defense.” Miller claims that the testimony of Suddreth, the missing witness, was critical to his defense because it would prove that he discharged the gun only after being attacked by Allen. Miller testified at the first trial that he pulled his gun only after Allen grabbed him by the neck and began to crush his windpipe. Suddreth testified that although he did see Miller stand up and back away from the poker table prior to the shooting, he was looking down at the cards at the time the first gunshot was heard, and thus was not aware of who provoked the incident. A surveillance video of the incident confirming the sequence of events was also shown at trial. Accordingly, the testimony provided by Suddreth would have been both cumulative and not material to the defense, and we find no abuse of discretion in the trial court’s weighing of this factor against Miller.

3. Balancing all of these factors together, we find that the trial court did not abuse its discretion by concluding that the presumptive prejudice arising from any delay in bringing Miller to trial was insufficient for him to prevail on his speedy trial claim, given that there was no demonstrable prejudice to Miller’s defense and Miller was dilatory in asserting his rights.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       505 U. S. 647, 651 (II) (112 SC 2686, 120 LE2d 520) (1992).

        Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008).

        Bowling v. State, 285 Ga. 43, 44 (1) (a) (673 SE2d 194) (2009).

       (Citation omitted.) Fallen v. State, 289 Ga. 247, 247-248 (710 SE2d 559) (2011), citing Barker, supra.

       (Citation and punctuation omitted.) McCree v. State, 313 Ga. App. 101, 102-103 (720 SE2d 208) (2011).

        Meder v. State, 305 Ga. App. 702 (700 SE2d 706) (2010) (a delay approaching one year raises a threshold presumption of prejudice).

       (Citation and punctuation omitted.) Teasley v. State, 307 Ga. App. 153, 158 (2) (a) (704 SE2d 248) (2010).

       “It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis.” Simmons v. State, 304 Ga. App. 39, 41 (2) (a) (696 SE2d 75) (2010) (footnote omitted).

       (Punctuation and footnote omitted.) Harrison v. State, 311 Ga. App. 787, 790 (3) (a) (717 SE2d 303) (2011).

       (Citation and punctuation omitted.) Ward v. State, 311 Ga. App. 425, 429 (3) (715 SE2d 818) (2011).

       (Citation and punctuation omitted.) Id.

       See Nealy v. State, 246 Ga. App. 752, 754 (3) (542 SE2d 521) (2000).

        Nusser v. State, 275 Ga. App. 896, 898 (622 SE2d 105) (2005).

       Although Miller did file a pro se demand for a speedy trial prior to his initial trial, such motion could not be considered by the trial court because he was represented by counsel at the time. Ware v. State, 267 Ga. 510, 511 (2) (480 SE2d 599) (1997).

       See State v. White, 282 Ga. 859, 862 (2) (c) (655 SE2d 575) (2008).

       (Citation omitted.) Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001) (defendant announcing ready for trial and objecting to a continuance cannot be construed as an assertion of the right to a speedy trial). Accord Grizzard v. State, 301 Ga. App. 613, 616 (2) (c) (688 SE2d 402) (2009) (merely appearing for trial does not invoke the right to a speedy trial).

        White, supra at 862 (2) (d).

        Threatt v. State, 282 Ga. App. 884, 889 (d) (640 SE2d 316) (2006).

       (Citation omitted.) Id. at 889-890 (d).

        Ingram v. State, 280 Ga. App. 467, 471-472 (1) (d) (634 SE2d 430) (2006). Accord Disharoon v. State, 288 Ga. App. 1, 6 (1) (d) (652 SE2d 902) (2007). Compare Hardeman v. State, 280 Ga. App. 168, 171 (4) (633 SE2d 595) (2006) (delay in trial prejudiced defense where testimony of deceased witness, that defendant present at scene was unconnected with drug deal, was material and went to heart of defense).

       See, e.g., Jakupovic v. State, 287 Ga. 205, 208 (2) (695 SE2d 247) (2010).


text:
    A11A1520.
    TYNER v. THE STATE.
    (722 SE2d 177)
   Dillard, Judge.

Following a jury trial, Gloria Ann Tyner was convicted of one count of felony theft by shoplifting. Tyner appeals her conviction and the denial of her motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in allowing a witness to testify as to an ultimate issue of fact; admitting cumulative evidence; denying her request for a continuance to obtain new counsel; sentencing her as a recidivist, pursuant to OCGA § 17-10-7, based on her past shoplifting convictions; improperly expressing its opinion as to the evidence and her guilt; and denying her ineffective-assistance-of-counsel claims. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that on June 5, 2010, a loss-prevention officer for a large department store in a shopping mall was monitoring the store’s video-surveillance cameras when he observed Tyner approach a display containing designer handbags, examine one of the handbags, and then walk toward the exit. And while the officer found Tyner’s behavior suspicious, no security guard was on duty that day, and therefore, Tyner was not questioned. A few minutes later, Tyner exited the store, and the officer saw her drive away.

On June 12, 2010, only one week after the first incident, the same loss-prevention officer was monitoring the store’s video-surveillance cameras when he once again saw Tyner—whom he recognized because she was wearing the identical clothing she had worn a week earlier—approach the same display of designer handbags. After Tyner examined the display, the officer observed her concealing a handbag under one of the department store’s shopping bags, which she was carrying. This time, a security guard was on duty, and the officer told the guard to stand near the exit to prevent Tyner from leaving. Tyner apparently noticed the security guard, and thus, instead of immediately exiting, she walked around the store’s lingerie section for several minutes before attempting to conceal the handbag under a rack of clothes. She then proceeded toward the store’s exit but was stopped by the security guard, searched, and escorted to the store’s office to await the arrival of police. Thereafter, at the loss-prevention officer’s direction, one of the store’s assistant managers retrieved the bag that Tyner had concealed under the clothing rack, which contained a designer handbag and four wallets—the total value of which exceeded $1,000.

Tyner was thereafter indicted on two counts of felony theft by shoplifting, with Count 1 alleging that she stole a purse from the store on June 5, 2010, and Count 2 alleging that she stole a purse and wallets from the store on June 12, 2010. During trial, the loss-prevention officer testified regarding his observation of Tyner’s actions on the subject dates, as well as the value of the stolen merchandise, and the police officer, who was dispatched to the store, testified regarding Tyner’s arrest. At the trial’s conclusion, the jury found Tyner not guilty on Count 1 but guilty on Count 2, and the trial court imposed a sentence of ten years to serve.

Thereafter, Tyner obtained new counsel and filed a motion for a new trial, alleging, inter alia, that her trial counsel provided ineffective assistance. And after conducting a hearing on the matter, during which Tyner and her trial counsel testified, the trial court denied Tyner’s motion. This appeal follows.

1. Tyner challenges the sufficiency of the evidence supporting her felony shoplifting conviction, arguing that the State failed to prove that any merchandise was actually taken or concealed, given that no merchandise was found on her person, in her bag, or in her car. This contention is without merit.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case. . . ,”

Additionally, OCGA § 16-8-14 (a) (1) provides, in relevant part, that

[a] person commits the offense of theft by shoplifting when he ... , with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part,. . . [clonceáis or takes possession of the goods or merchandise of any store or retail establishment.

And shoplifting is punished “as a misdemeanor if the value of merchandise taken is $300 or less[, but] [t]he offense is a felony if the value of merchandise taken is greater than $300.”

Here, the evidence showed that Tyner took a purse and four wallets from the department store’s display and concealed the merchandise under a clothing rack after realizing that she was under surveillance and could not exit the store without being stopped and searched by the security guard. Tyner, nevertheless, contends that this evidence is insufficient because no merchandise was found on her person. However, “[wjhether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” And under these circumstances, the evidence was sufficient to support the jury’s finding that Tyner was guilty beyond a reasonable doubt of theft by shoplifting.

2. In the same enumeration of error challenging the sufficiency of the evidence, Tyner contends that the trial court erred in (1) allowing the department store’s loss-prevention officer to improperly narrate while the surveillance video was played for the jury and (2) admitting into evidence still photographs taken from the surveillance footage. We note that Tyner did not specifically enumerate either of these claims of error but instead has improperly used her brief to expand her enumerations of error. Nevertheless, Tyner’s claims are wholly without merit.

In the trial of this matter, the State played the surveillance tapes that showed Tyner’s actions in the department store on the two dates in question while the loss-prevention officer explained what he thought the tapes depicted during his surveillance. Tyner argues that this testimony constituted improper bolstering, but we disagree. Indeed, the officer’s testimony “did not reflect his personal belief as to the veracity of the evidence, [and therefore,] it constitutes neither improper bolstering nor a statement of opinion upon an ultimate issue of fact for the jury.” Moreover, it was up to the jury “to determine the weight to be given to the loss prevention officer’s testimony once it was admitted.” Accordingly, the trial court did not err in allowing the officer to testify regarding what was depicted on the surveillance videotape, as the “testimony offered no opinion but merely pointed out factual evidence which supported the contentions of the State, evidence already before the jury.”

Tyner also argues that still photographs taken from the surveillance video footage and shown to the jury during trial were cumulative and thus prejudicial. Again, we disagree. Generally, “[t]he admission of cumulative evidence is harmless.” And here, Tyner failed to demonstrate how the admission of these photographs was prejudicial. Thus, her claim that the admission of this cumulative evidence constituted reversible error lacks merit.

3. Tyner also contends that the trial court erred in denying her request for a continuance to hire new counsel, which she did not make until the day of her trial. We disagree.

It is well settled that
[a] motion for continuance, even to employ new counsel, is addressed to the sound discretion of the trial court, and this Court will not interfere unless it is clearly shown that the court abused its discretion. The trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. Broad discretion must be granted trial courts on matters of continuances.

And here, Tyner requested a continuance to obtain new counsel on the day of trial just before the beginning of jury selection, claiming that she was not satisfied with how her current hired counsel was handling her case. Nevertheless,

even where a defendant expressed lack of confidence in trial counsel’s ability and disagreement with his advice and strategy, we have affirmed a trial court’s denial of a last-minute request for a continuance to retain new counsel if it appears that the defendant negligently failed to employ new counsel promptly or if it appears he is using the tactic for delay.

Given the foregoing, we simply cannot say that the trial court abused its discretion in denying Tyner’s last-minute request for a continuance to hire new counsel.

4. Tyner also contends that the trial court erred in sentencing her as a recidivist pursuant to OCGA § 17-10-7. This contention is likewise without merit.

Immediately after the jury found Tyner guilty of felony shoplifting, the trial court held a sentencing hearing, during which the State’s prosecutor noted that Tyner had previous convictions of both felony and misdemeanor shoplifting and argued for the court to impose the maximum sentence. The State did not, however, argue that Tyner should be sentenced as a recidivist pursuant to OCGA § 17-10-7.

Thereafter, the trial court imposed a sentence of ten years to serve in confinement, which is, in fact, the maximum sentence for felony theft by shoplifting. And in doing so, the trial court made no mention of the recidivist statute. Furthermore, the sentencing form similarly makes no mention of Tyner being sentenced pursuant to OCGA § 17-10-7. Thus, the trial court imposed a sentence within the statutory limits, and “this court will not disturb a sentence within the statutory limits.”

5. Tyner further contends that the trial court committed reversible error by expressing its opinion as to the evidence and her guilt, in violation of OCGA § 17-8-57, at several points during the trial. We disagree.

OCGA § 17-8-57 provides:
It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held ... to be error and the decision in the case reversed, and a new trial granted in the court below ....

However, to constitute an improper comment under OCGA § 17-8-57, “the trial court’s statement must express an opinion about whether the evidence has proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.”

In the case sub judice, the loss-prevention officer stated during his testimony regarding the surveillance video footage that his store averaged one shoplifter per week. Tyner objected on relevancy grounds, but the trial court responded: “I think what he’s trying to do, he’s not saying that she is the person committing all these shopliftings, I think what he’s trying to do is show that he has some expertise in why he focused on this particular person.” Shortly thereafter, the loss-prevention officer, while still narrating the video, testified that Tyner was heading toward the store’s exit until she saw the security guard. Tyner again objected, arguing that the testimony was speculative, to which the trial court responded: “The jurors can see what she did. That’s his interpretation of it. They can reach their own conclusions.”

Tyner now argues that the trial court’s statements showed a bias in favor of the State and improperly opined that she was, in fact, the woman depicted in the video footage. But contrary to Tyner’s assertion, the trial court’s comments and use of the word “she” to describe the female depicted in the video footage did not amount to bias or to issuing an opinion as to identity. Indeed, the trial court’s comments were merely explanations as to why it did not agree with Tyner’s objections to the loss-prevention officer’s testimony. Importantly, “[a] ruling by the court on a point of law is not an expression of opinion; neither are remarks by the court explaining the court’s rulings.”

Tyner also argues that the trial court violated OCGA § 17-8-57 when it questioned the loss-prevention officer as to what kind of work he did before being employed in retail and whether he had already testified about the value of the subject merchandise. Tyner further claims that the court erred when it inquired about venue by asking if the department store was located in Coweta County. Again, we disagree that any of these questions violated OCGA § 17-8-57. A trial court “may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides.” And here, none of the trial court’s questions, including its query regarding venue, expressed or intimated its opinion as to what had or had not been proved by the State.

6. Finally, Tyner contends that her trial counsel rendered ineffective assistance in a number of ways, namely in failing to (a) call the store security guard as an exculpatory witness, (b) have parts of the trial transcribed and file jury charges, (c) object to improper testimony, (d) assert a diminished-capacity defense, and (e) zealously represent her during sentencing. But based on our review of the record, we find that Tyner has not demonstrated that her conviction should be reversed due to ineffective assistance of counsel.

In order to prevail on her claims of ineffective assistance of counsel, Tyner “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [her] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” In addition, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. And unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo. Moreover, we note that the jury acquitted Tyner of one of the shoplifting counts, which “strongly supports the conclusion that the assistance actually rendered by [her] trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” With these guiding principles in mind, we will now address each of Tyner’s remaining claims in turn.

(a) Failure to call an exculpatory witness. Tyner argues that her trial counsel provided ineffective assistance by failing to call the department store security guard as a witness. Specifically, she argues that the guard would have aided her defense by testifying that she did nothing wrong on the day she was arrested for shoplifting.

In considering this argument, we initially note that “[t]he decision on which defense witnesses will be called is a matter of trial strategy and tactics and does not usually constitute ineffective assistance of counsel.” In fact, “[w]hich witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client, and whether an attorney’s trial tactics are reasonable is a question of law, not fact.”

Here, in support of her claim that trial counsel’s failure to call the department store security guard as a witness constituted deficient performance, Tyner testified during her motion-for-new-trial hearing that on the day she was arrested, the department store security guard searched her person and car and, after finding nothing, apologized to her and told her that she had done nothing wrong. Tyner further testified that she informed her counsel about the security guard’s statement, but that her counsel made no effort to interview the guard or call him as a witness.

The security guard also testified at the motion-for-new-trial hearing, and although he confirmed that he was never contacted by Tyner’s trial counsel, Tyner’s appellate counsel did not ask the guard what his testimony would have been had he been called as a witness. Regardless, even if we were to assume that the security guard would have testified at trial as Tyner alleges, such testimony was not truly exculpatory. Neither the loss-prevention officer nor the State alleged that Tyner was apprehended with the stolen merchandise on her person or in her car. Rather, Tyner was accused of taking the designer handbag and wallets and then concealing them under a clothing rack when she realized she was under surveillance. Thus, the security guard’s alleged comments to Tyner in no way contradicted the State’s theory of the case. Accordingly, we find no error in the trial court’s conclusion that trial counsel’s failure to call the guard as a witness was not deficient.

(b) Failure to request transcription and to file jury charges. Tyner also claims that her trial counsel rendered ineffective assistance by failing to request that jury selection, opening statements, and closing arguments be transcribed and in failing to file specific jury charges. However, Tyner has not shown—or even argued—how this alleged failure prejudiced her or affected the outcome of her trial, and thus, she cannot demonstrate ineffective assistance on this ground. Indeed, “[mjerely alleging that counsel provided ineffective assistance, without more, is insufficient to establish a claim of ineffective assistance of counsel.”

(c) Failure to make objections. Tyner argues that her counsel rendered ineffective assistance by failing to object to improper testimony and other evidence. Specifically, she claims that her trial counsel performed deficiently by failing to object to opinion testimony offered by the loss-prevention officer, several instances of hearsay testimony, leading questions by the State, and cumulative evidence. However, as previously noted, “[i]n evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” And where trial counsel does not testify at the motion for new trial hearing about the subject, “it is extremely difficult to overcome this presumption.”

And here, during the motion-for-new-trial hearing, Tyner failed to question her trial counsel as to why he did not object to any of the testimony or evidence that she claims was improper. Given these circumstances, “any decision not to object is presumed to be a strategic one which will not support a claim of ineffective assistance of counsel.”

(d) Failure to present diminished capacity defense. Tyner also contends that her counsel rendered ineffective assistance by failing to investigate her claim that she suffers from several mental-health disabilities and, consequently, to implement a diminished-capacity defense. This contention lacks merit.

During Tyner’s motion-for-new-trial hearing, Tyner’s appellate counsel asked her trial counsel whether Tyner informed counsel of her mental-health condition. Trial counsel responded: “I do not recall her telling me that.” Later during the hearing, Tyner insisted that she had informed trial counsel regarding her condition. Nevertheless, “the trial court had every right to disbelieve this self-serving testimony in favor of counsel’s testimony.” Accordingly, the trial court did not err in finding that Tyner failed to demonstrate that her trial counsel performed deficiently in this regard.

(e) Failure to adequately contest sentencing. Tyner also contends that her trial counsel rendered ineffective assistance by failing to contest her recidivist sentencing and by failing to present mitigation evidence on her behalf during the sentencing hearing. We disagree.

First, as noted supra, the trial court did not sentence Tyner pursuant to the recidivist statute. As such, any claim that Tyner’s trial counsel performed deficiently by failing to contest such sentencing is wholly without merit. Furthermore, at the motion-for-new-trial hearing, the only proffer of mitigation evidence that could have been presented at sentencing was Tyner’s testimony that she suffered from mental-health problems. But as previously noted in Division 6 (d), the trial court did not err in finding that Tyner’s trial counsel was never made aware of her condition. Beyond her testimony about her mental-health condition, Tyner did not proffer any other evidence or witnesses that trial counsel could have offered in mitigation of her sentence. And absent any such showing in the record, “we cannot find that counsel’s failure to present mitigation evidence was deficient or that it prejudiced [Tyner’s] case.”

Moreover, while we agree with the trial court that Tyner failed to demonstrate that her trial counsel performed deficiently, even if we were to assume such deficiencies, considering their collective prejudicial effect, we conclude as a matter of law that the absence of those deficiencies would not in reasonable probability have changed the outcome of Tyner’s trial. Accordingly, the trial court did not err in denying Tyner’s claims of ineffective assistance of counsel.

Decided January 13, 2012.

Maureen M. McLeod, Dorian Murry, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell, C. J., and Boggs, J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       OCGA § 16-8-14 (a) (1).

        Raszeja v. State, 298 Ga. App. 713, 714 (1) (680 SE2d 690) (2009) (punctuation omitted); see OCGA § 16-8-14 (b) (1), (2).

        Foster v. State, 192 Ga. App. 720, 720 (386 SE2d 383) (1989) (punctuation omitted).

        See Simmons v. State, 278 Ga. App. 372, 372-73 (1) (629 SE2d 86) (2006) (holding that evidence that defendant initially concealed liquor bottles but attempted to return them to shelf when he realized he was being watched was sufficient to support shoplifting conviction); Racquemore v. State, 204 Ga. App. 88, 88 (1) (418 SE2d 448) (1992) (holding that sufficient evidence supported shoplifting conviction when defendant placed two packages of meat in his pants and returned them to shelf after store personnel started following him); Allen v. State, 197 Ga. App. 3, 3 (1) (397 SE2d 472) (1990) (holding that sufficient evidence supported shoplifting conviction when defendant placed cigarette cartons in bags and then placed bags at an unoccupied cash register adjacent to store’s exit before proceeding to another aisle to pay for other groceries in his cart); Foster, 192 Ga. App. at 720 (holding that evidence supported shoplifting conviction when defendant put two steak packages in his jacket but then placed the packages on a shelf containing paper goods after he realized he was being watched by store employees).

        See Manley v. State, 287 Ga. App. 358, 360 (4) (651 SE2d 453) (2007) (noting that “a party cannot expand her enumerations of error through argument or citation in her brief” (punctuation omitted)).

        Wright v. State, 301 Ga. App. 178, 180 (2) (687 SE2d 195) (2009) (punctuation omitted); see Ross v. State, 262 Ga. App. 323, 324-25 (1) (585 SE2d 666) (2003).

        Wright, 301 Ga. App. at 181 (2).

        Id. (punctuation omitted).

        Wright v. State, 259 Ga. App. 74, 78 (4) (576 SE2d 64) (2003) (punctuation omitted).

        Thornton v. State, 305 Ga. App. 692, 696 (2) (700 SE2d 669) (2010) (punctuation omitted).

         Id. (punctuation omitted); see Jordan v. State, 247 Ga. App. 551, 555 (3) (544 SE2d 731) (2001) (holding that trial court did not abuse its discretion in denying defendant’s request for continuance to hire new counsel made five days before trial even though defendant expressed disagreement with current counsel’s strategy).

        See Thornton, 305 Ga. App. at 696-97 (2); Jordan, 247 Ga. App. at 555 (3).

        See OCGA § 16-8-14 (b) (2) (“A person convicted of the offense of theft by shoplifting, as provided in subsection (a) of this Code section, when the property which was the subject of the theft exceeds $300.00 in value commits a felony and shall be punished by imprisonment for not less than one nor more than ten years.”).

        Raszeja, 298 Ga. App. at 716 (4) (punctuation omitted).

        Artis v. State, 299 Ga. App. 287, 290 (2) (682 SE2d 375) (2009) (punctuation omitted).

        Id. (punctuation omitted).

        Dickens v. State, 280 Ga. 320, 324 (3) (627 SE2d 587) (2006).

        See State v. Gardner, 286 Ga. 633, 633-35 (690 SE2d 164) (2010) (holding that trial court’s query as to whether the State had proven venue did not violate OCGA § 17-8-57). Compare Patel v. State, 282 Ga. 412, 413 (2) (651 SE2d 55) (2007) (holding that reversal was required when trial court stated that “[v]enue is proper in [this county] or we wouldn’t be here right now”).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see also Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2).

        Id.; see also Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

        Henderson, 303 Ga. App. at 898 (1).

        Goss v. State, 305 Ga. App. 497, 499 (2) (699 SE2d 819) (2010) (punctuation omitted).

        Crawford v. State, 302 Ga. App. 782, 784 (2) (691 SE2d 660) (2010).

        Id. (citation omitted).

        See id. at 784-85 (2) (holding that counsel did not perform deficiently by failing to call witness whose testimony would not have been truly exculpatory).

        See Wright v. State, 274 Ga. 730, 732 (2) (a) (559 SE2d 437) (2002) (holding that counsel did not provide ineffective assistance based on his failure to have voir dire, opening, or closing transcribed when defendant did not assert that anything harmful or prejudicial occurred during those portions of the trial); Smith v. State, 309 Ga. App. 241, 249 (3) (d) (709 SE2d 823) (2011) (holding that defendant’s ineffective assistance claim failed when defendant did not establish how counsel’s failure to request certain charge prejudiced defendant’s trial).

        Slaughter v. State, 282 Ga. App. 276, 277 (1) (638 SE2d 417) (2006).

        Higginbotham v. State, 287 Ga. 187, 190 (5) (a) (695 SE2d 210) (2010) (punctuation omitted).

        Id. at 190-91 (5) (a) (punctuation omitted).

        Wilson v. State, 306 Ga. App. 827, 831 (2) (a) (703 SE2d 400) (2010) (punctuation omitted).

        Pattillo v. State, 304 Ga. App. 344, 345 (696 SE2d 370) (2010).

        See id. (holding that trial court did not have to believe defendant’s testimony that he identified an alibi witness but that his trial counsel failed to interview that witness).

        See Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (holding that “[t]he failure to pursue a futile objection does not amount to ineffective assistance”).

        Kendrick v. State, 279 Ga. App. 263, 267 (2) (b) (630 SE2d 863) (2006).

        See Carrie v. State, 298 Ga. App. 55, 64 (7) (679 SE2d 30) (2009) (holding that absence of trial counsel’s assumed deficiencies would not in reasonable probability have changed the outcome of defendant’s trial). See generally Schofield v. Holsey, 281 Ga. 809, 811 (II) n.l (642 SE2d 56) (2007) (holding that the combined effect of trial counsel’s deficiencies should be considered in determining prejudice).


text:
    A11A1704.
    OBEGINSKI v. THE STATE.
    (722 SE2d 162)
   Dillard, Judge.

Following a jury trial, Aaron Leigh Obeginski was convicted on one count of aggravated child molestation and two counts of child molestation. Thereafter, he filed a motion for new trial, which the trial court denied. Obeginski argues on appeal that the evidence was insufficient to support his convictions and that his attorney rendered ineffective assistance of counsel. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the morning in question, Obeginski was exercising his visitation rights with the victim, his seven-year-old daughter. After playing at the park, during which time Obeginski was drinking alcohol from the trunk of his vehicle, Obeginski drove the victim to his residence. The victim reported being scared during the drive due to Obeginski’s behavior, stating specifically that he was speeding and saying “woo hoo!”

As Obeginski sped into the driveway, the noise caught the attention of the home’s owner, Darlene Harrington, and her boyfriend, Jack Dunevent. Both immediately noticed that Obeginski appeared heavily intoxicated and unsteady on his feet as he exited the vehicle. They then noticed that the victim was in the car as well.

Alarmed at Obeginski’s drunken state, Dunevent “got onto him” for driving while intoxicated with a young child in the car and directed Harrington to locate the victim’s mother and inform her that Obeginski was in no condition to care for the child. Dunevent also disabled Obeginski’s car so that he could not leave the residence. A third resident of the house also testified as to Obeginski’s apparent drunkenness.

Harrington located the victim’s mother, whom Harrington did not know, through a mutual friend and informed her of the troubling circumstances. The victim’s mother arrived at the residence a short time later and Harrington led her to Obeginski’s room. And upon opening the door to the bedroom, they observed Obeginski asleep and the victim lying next to him in the bed, crying. The victim immediately reached for her mother, who lifted her from the bed. She was naked from the waist down and told her mother through tears that Obeginski had “licked [her] bottom” and had “kissed [her] like a girl,” “with tongue.” The victim repeated the statements to Harrington, and the police were called.

Upon their arrival, the responding officers observed the crying victim and noted that she had nothing more than an afghan covering the bottom half of her body. As they entered Obeginski’s bedroom, they saw the victim’s panties lying next to the bed and Obeginski fast asleep. The officers then pulled the blankets off of Obeginski as they attempted to wake him and noticed that he was naked. At this point, the officers testified that Obeginski became aggressive toward them as he awoke and noted that he smelled of alcohol and slurred his speech.

An investigator subsequently came to the residence and, pursuant to a search warrant, searched Obeginski’s bedroom and vehicle. He located and photographed the victim’s panties on the floor next to the bed, her pants in a different area of the bedroom, and a bottle of vodka in the closet. The investigator also located three bottles of vodka in the trunk of Obeginski’s vehicle. The investigator reported that when he arrived at the house, Obeginski’s speech was so slurred that he could not understand him.

The victim was subjected to a forensic interview that was videotaped and played for the jury. In it, she repeated the same allegations she made to her mother and Harrington. The victim also discussed how Obeginski was drinking alcohol at the park and that she was scared by the manner in which he drove them to his home. The victim also clarified that she was referring to her vagina when she stated that Obeginski “licked [her] bottom”; explained that Obeginski stuck his tongue in her mouth and licked her face when he kissed her; and elaborated that during the ordeal, Obeginski directed her to place her hand on his penis and “move it up.”

Thereafter, Obeginski was convicted on one count of aggravated child molestation and two counts of child molestation. He then filed a motion for new trial, which the trial court denied. This appeal follows.

1. Obeginski maintains that the evidence presented at his trial was insufficient to sustain his convictions on one count of aggravated child molestation and two counts of child molestation. We disagree.

As indicted, Count 1 charged Obeginski with aggravated child molestation in that he did “commit an immoral and indecent act involving sodomy, to wit: [he] placed his mouth and tongue on the vagina of [the victim], a child under the age of 16 years, with the intent to arouse and satisfy [his] sexual desires.” Count 2 charged him with child molestation in that he did “commit an immoral and indecent act, to wit: [he] placed the hand of [the victim], a child under the age of 16 years, on his penis, with the intent to arouse and satisfy [his] sexual desires. ...” Count 3 charged Obeginski with child molestation in that he did “commit an immoral and indecent act, to wit: [he] kissed and licked the face of [the victim], a child under the age of 16 years old, with the intent to arouse and satisfy [his] sexual desires. ...”

The child victim’s testimony alone authorized Obeginski’s convictions on the crimes charged, and her statements were further corroborated by her mother, Obeginski’s housemates, and the responding law-enforcement officers. Furthermore, there is simply no merit to Obeginski’s assertion that the State failed to prove that he engaged in the charged conduct with the intent to arouse and satisfy his sexual desires. The determination of a criminal defendant’s intent is a factual question that, by its nature, often must be inferred. And in the face of the evidence set forth supra, it strains credulity for Obeginski to claim that he had any intent other than to satisfy his own depraved sexual proclivities.

2. Obeginski further contends that his attorney rendered ineffective assistance of trial counsel because she failed to object to testimony from Obeginski’s housemates that he drove with the victim in his vehicle while he was under the influence of alcohol. Although Obeginski concedes that testimony related to his intoxication at the time of the incident was admissible as part of the res gestae, he nevertheless contends that his driving while intoxicated constituted evidence of an independent, uncharged crime that amounted to improper character evidence.

Decided January 13, 2012

Amanda R. Flora, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

In order to establish that he received ineffective assistance of trial counsel, Obeginski “must show both that his trial counsel’s performance was deficient and that the deficiency prejudiced his defense such that there is a reasonable probability that the outcome at trial would have been different.” But here, we need not even consider whether Obeginski’s attorney was deficient for failing to object to the challenged testimony, because Obeginski cannot establish that he was prejudiced by her failure to do so. The victim’s videotaped forensic interview describing the events surrounding the crime was admissible as substantive evidence under the Child Hearsay Statute. Specifically, the victim described how Obeginski drank alcohol while the two were at the park, and then drove home in a manner that scared her. Thus, any additional testimony by Obeginski’s housemates that he appeared to be intoxicated when he arrived home was cumulative of other properly admitted evidence. And because “[t]he failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel,” Obeginski’s claim necessarily fails. Accordingly, we affirm the trial court’s denial of Obeginski’s motion for new trial.

Judgment affirmed.

Mikell, C. J., and Boggs, J., concur.

        Westbrooks v. State, 309 Ga. App. 398, 399-400 (1) (710 SE2d 594) (2011).

       Obeginski’s residence consisted of a room that he rented in a house also inhabited by several other individuals.

        See OCGA § 16-6-4 (c) (“A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”).

       OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. . . .”).

        See, e.g., OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Vaughn v. State, 301 Ga. App. 391, 392 (687 SE2d 651) (2009) (“The victim’s testimony, standing alone, was sufficient to prove the charged crimes.”); Hubert v. State, 297 Ga. App. 71, 72 (1) (676 SE2d 436) (2009) (same).

        See OCGA § 16-2-6 (“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”); Phillips v. State, 269 Ga. App. 619, 629 (8) (604 SE2d 520) (2004) (“Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.” (punctuation omitted)).

        See Andrew v. State, 216 Ga. App. 427, 427 (454 SE2d 542) (1995) (noting that it can be “inferred from the fact that the defendant exposed himself to a child that he had the intent to arouse or satisfy his sexual desires”).

        Bearfield v. State, 305 Ga. App. 37, 42 (3) (699 SE2d 363) (2010).

        Morris v. State, 284 Ga. 1, 4 (3) (662 SE2d 110) (2008) (“If an appellant fails to meet his burden of proving either prong of the . . . test, the reviewing court does not have to examine the other prong.”).

        See OCGA § 24-3-16; Lamb v. State, 293 Ga. App. 65, 66 (666 SE2d 462) (2008).

        Woods v. State, 304 Ga. App. 403, 411 (4) (a) (ii) (696 SE2d 411) (2010); accord Morris, 284 Ga. at 4 (3); Thomas v. State, 296 Ga. App. 170, 173-74 (2) (c) (674 SE2d 56) (2009).


author: Ellington, Judge.

text:
    A11A2402.
    HECK v. THE STATE.
    (722 SE2d 166)
   Ellington, Judge.

A Dougherty County jury found Alfred Heck guilty beyond a reasonable doubt of three counts of child molestation, OCGA § 16-6-4 (a) (1), and one count of enticing a child for indecent purposes, OCGA § 16-6-5 (a). He appeals from the denial of his motion for new trial, asserting that the trial court abused its discretion in denying his motion to sever one of the child molestation counts from the other indicted offenses and in admitting certain “irrelevant, non-sexually explicit exhibits” as evidence at trial. Heck also contends that he was denied the effective assistance of trial counsel. For the following reasons, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following facts. In September and October 2001, Heck was 50 years old, used a motorized wheelchair, and was known by the nickname “Bubba.” He lived by himself in the Paradise Village mobile home park, which is located in Dougherty County. A woman and her 11-year-old son, S. A., lived next door to Heck. The boy felt sorry for Heck and decided to try to be his friend. S. A. began to spend a lot of time at Heck’s house playing video games. Over the next few weeks, Heck invited S. A. to spend the night at his house at least three times; the boy’s mother allowed him to stay over twice because S. A. seemed to enjoy it, she thought that Heck’s sister was going to be present, and she did not perceive Heck as a threat. When Heck asked S. A.’s mother on the third occasion, however, the boy told her that he did not want to go. When the mother asked her son to tell her why he no longer wanted to go to Heck’s house, he simply said that he did not want to go. Around the same time, S. A.’s mood changed, and he began to soil himself and his clothes regularly at home and at school. When asked what was wrong, S. A. responded that he did not know.

In November 2001, S. A. and his mother moved away from Paradise Village. Then, on May 2, 2002, the mother received a phone call from a friend who still lived there and who knew that her son had spent time with Heck inside his house. The friend informed S. A.’s mother that he had learned that Heck was a registered sex offender, and he asked her if she knew whether Heck had “messed with” the boy. The mother immediately asked her son, “Has Bubba ever messed with you?” S. A. lowered his head, started to cry, and responded, “Yes, ma’am.” The boy told his mother that Heck had “played” with his penis and had kissed him on the mouth, and, when asked why he did not call her from Heck’s house, S. A. said that Heck would not let him.

The mother called the police, who referred her to a center for children who have disclosed physical and/or sexual abuse, where a forensic interviewer conducted a videotaped interview of S. A. The videotape was played for the jury without objection. During the interview, S. A. revealed that Heck had touched his (the boy’s) penis and buttocks with his hands and that he (the boy) had touched Heck’s penis with his hands. S. A. also stated that Heck had shown him a pornographic videotape that showed two women having sexual intercourse with a man and that there were “adult” magazines in Heck’s bathroom.

Based upon S. A.’s interview statements, police officers went to Heck’s residence on May 3, 2002, where they conducted a search pursuant to his consent. According to one of the officers, almost all of Heck’s furniture and belongings, including his bed, a television and a videotape recorder, were in his master bedroom; the master bathroom was only accessible by walking through Heck’s bedroom. In the master bedroom, officers found the following items: a pornographic videotape that was consistent with that described by S. A.; a foreign videotape depicting “nudist colonies” that showed naked people of various ages, from toddlers to senior citizens, swimming together and riding on water slides; and an envelope addressed to Heck that contained a brochure with color photographs of naked children and adults and a form that could be used to order videotapes of nudist colonies. In addition, even though Heck lived alone and had no children, his bedroom contained numerous children’s live action and animated videotapes; a bag of “lollipops” in Heck’s dresser drawer; two boxes of children’s toys; a comic book and a children’s cookbook; and approximately twenty parenting and family-oriented magazines that primarily depicted infants and preschool-age children. There were also two photographs of S. A. on the wall above the television. In Heck’s master bathroom, the officers found a “Hustler” pornographic magazine, and, under the sink, they found a plastic bag with 15 pairs of folded, soiled little girls’ panties and a separate bag containing several small plastic hair barrettes.

On the same day, after the search was completed, an investigator conducted a videotaped interview of Heck; pursuant to the request of defense counsel, the entire interview was played for the jury at trial. According to the investigator who conducted the interview, Heck admitted, among other things, that S. A. slept in the bed with him during their sleepovers and that they would “wrestle” while in bed. Heck said that S. A. may have seen his penis when he (Heck) was in the bathroom. He also admitted that the nudism and pornographic videotapes belonged to him and that he showed the pornographic tape to S. A. three or four times. In addition, Heck told the investigator that he experiences sexual urges toward children and that he takes a prescribed medication that causes sexual dysfunction in order to help control those urges. He denied, however, that he had molested S. A., and he claimed that the panties that were found under his sink belonged to his niece’s children. Following the interview, Heck was arrested.

Several days later, the investigator received a report from a woman who told him that her granddaughter, S. B., who was slightly less than three years old, had been molested by Heck inside his trailer on or about May 1, which was just before Heck’s arrest. S. B.’s father testified at trial that he lived in Paradise Village and, on the day of the molestation, he was watching his daughter and his two stepsons as they were playing with other children at the neighborhood’s playground. He went back to his home to get a telephone and to use the bathroom and, when he returned to the playground about ten minutes later, his children were not there. At trial, one of the man’s stepsons testified that Heck had come to the playground, had put S. B. on his lap in his wheelchair, and had taken her inside his house; the stepson followed them there and went inside, also. When the man’s other stepson saw Heck and S. B. leave the playground, he ran home and told his stepfather that “Bubba” had taken S. B. The man started looking for his daughter and found her as she was walking away from Heck’s home. S. B. immediately told her father that Heck had picked her up, put her in his lap, and rubbed her “like this,” which she demonstrated by rubbing her vaginal area with her hand. When S. B.’s father checked her genital area, he saw that it was very red. Over the next few days, S. B. repeatedly, and sometimes spontaneously, told her mother, stepmother and grandparents that “Bubba” had put his hand in her “panties” and had touched her genitals. After the police were notified, S. B. told a forensic interviewer that “Bubba” had touched her “pee-pee.” A videotape of the interview was played for the jury at trial.

In addition to this evidence, the State showed that, since 1969, Heck had molested several other children, that Heck had previously been incarcerated in Georgia as a consequence of his convictions for child molestation and related crimes, and that Heck was a registered sex offender in the state. Specifically, the State presented similar transaction evidence to show that Heck had previously molested his thirteen-year-old stepdaughter, her eight-year-old cousin, and her fifteen-year-old best friend, as well as two sisters, ages two and eight, who lived next door to him.

1. On appeal from his convictions, Heck contends that the trial court erred in denying his motion to sever the trial on Count 4 of the indictment from the trial on Counts 1 to 3. He claims that severance was necessary to prevent prejudice and to ensure that the jury was able to consider each offense separately on its own merits, arguing that Count 4 was unrelated to the other counts, was based on different facts, involved a child of a different age and gender, and would have been inadmissible at the trial of the other offenses. Following a hearing, the trial court denied the motion.

“Severance is required if offenses are joined solely because they are similar in nature. Severance is not mandated, however, where the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind.” (Citation and punctuation omitted; emphasis supplied.) Boatright v. State, 308 Ga. App. 266, 273 (2) (707 SE2d 158) (2011). In other words, offenses have not been joined solely because they are of the same or similar character when the evidence of one offense can be admitted as similar transaction evidence during the trial of the other offense. Stewart v. State, 277 Ga. 138, 140 (587 SE2d 602) (2003). It follows that severance is not mandatory in such a case. Dickerson v. State, 304 Ga. App. 762, 765 (1) (697 SE2d 874) (2010).

This does not end the inquiry, however, because, while the fact that evidence of one offense would be admissible in a trial of another offense is a relevant consideration in determining whether to sever, “[a] trial court must still determine if severance of the offenses would promote a fair and intelligent determination of guilt or innocence as to each offense.” (Citation and punctuation omitted.) Heard v. State, 287 Ga. 554, 559 (4) (697 SE2d 811) (2010). In making that determination, the court should consider “whether[,] in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.” (Citation and punctuation omitted.) Dickerson v. State, 304 Ga. App. at 764 (1). See Loyless v. State, 210 Ga. App. 693, 695 (3) (436 SE2d 814) (1993) (accord).

As the trial court found in this case, the trial involved only four charged crimes, and neither the facts surrounding the offenses, nor the evidence presented to prove such facts, was complicated. Thus, Heck failed to demonstrate that there was any danger that the jury would be confused or unable to distinguish the evidence and apply the law intelligently as to each offense. Dickerson v. State, 304 Ga. App. at 764 (1); Loyless v. State, 210 Ga. App. at 695 (3).

Further, not only did two of the indicted offenses involve the same kind of conduct (the fondling of each victim’s genital area), both of the victims were children who were neighbors of Heck, and all of the offenses occurred at the same place (Heck’s bedroom inside his home in Paradise Village) and within months of one another. Thus, even if the trial court had severed the trials, the molestation of each child would have been admissible as a similar transaction — to show Heck’s intent and bent of mind to commit an illegal act to satisfy his sexual desires and his pattern of enticing children to come to a private place (his bedroom) to “play” so that he can commit such acts — at the trial on the charges involving the other child. See Butler v. State, 311 Ga. App. 873, 876-877 (1) (717 SE2d 649) (2011) (“[S]exual molestation of young children, as well as teenagers, regardless of sex or type of act, is sufficient similarity to make the evidence admissible. . . . [BJecause of the liberal admission of similar transaction evidence in cases involving sexual offenses, especially those against children or teenagers, a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crime.”) (punctuation and footnotes omitted; emphasis in original); Hostetler v. State, 261 Ga. App. 237, 239 (1) (582 SE2d 197) (2003) (accord). As noted above, when the evidence of one offense can be admitted as similar transaction evidence during the trial of the other offense, the decision of whether to sever the offenses for trial is within the discretion of the trial court. Stewart v. State, 277 Ga. at 140; Dickerson v. State, 304 Ga. App. at 765 (1).

Given the circumstances here, we conclude that the trial court did not abuse its discretion in denying Heck’s motion to sever. Heard v. State, 287 Ga. at 559 (4); Stewart v. State, 277 Ga. at 140; Dickerson v. State, 304 Ga. App. at 765 (1); see Loyless v. State, 210 Ga. App. at 695 (3) (The trial court did not abuse its discretion in denying the defendant’s motion to sever the trial on one count of simple battery, which alleged that he fondled the genitals of his twenty-eight-year-old, mentally challenged neighbor, from the trial on one count of child molestation, which alleged that he fondled the genitals of his six-year-old neighbor.).

2. Heck contends that the trial court committed harmful error when it admitted “irrelevant, non-sexually explicit exhibits” as evidence to show his course of conduct, intent, motive, and bent of mind to commit child molestation. The challenged evidence includes the following: the nudist colony videotapes; the brochure for ordering additional nudist colony videotapes; nine children’s live-action or cartoon videotapes; a videotape of a television program involving children; the bag of lollipops; the hair barrettes; the girls’ panties; the family-oriented magazines; a comic book; and a child’s cookbook. According to Heck, this evidence was irrelevant because there was no evidence that the items were used or otherwise involved in the incidents in this case or that either of the victims were ever exposed to the items. In addition, he claims that the evidence was unduly prejudicial because it suggested that he may have committed previous acts of child molestation that were not otherwise proved.

It is axiomatic that Georgia’s laws
favor[ ] the admission of any relevant evidence, no matter how slight its probative value, and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

(Citation and punctuation omitted.) Phillips v. State, 269 Ga. App. 619, 624 (4) (604 SE2d 520) (2004).

In its order denying Heck’s motion for new trial, the trial court specifically ruled that it had properly admitted the items as evidence of Heck’s bent of mind, concluding that

[a]ll of these items demonstrated [Heck’s] inclination towards, or preoccupation with, children. In light of his long-standing lust and sexual desire towards children, as demonstrated by [his] prior convictions and the testimony of the numerous similar transaction witnesses, the jury could have permissibly inferred that these items served as props for [Heck’s] sexual stimulation or as lures to gain access to children.

According to the court, it was up to the jury to determine what weight, if any, to give these items.

(a) Regarding the nudist colony videotapes, they were admitted at trial but were not played for the jury. One of the officers who had seen one of the videotapes, however, described it for the jury as showing “close up” views of a water slide at a lake “with kids and adults together, totally naked, walking up this . . . spired steurcase, and then coming down [the slide].” In addition, the marketing brochure describing similar videotapes for sale includes numerous color pictures showing a total of approximately 100 naked people, most of whom are children or young teenagers with their entire front or back-sides exposed, who are involved in a variety of activities, such as swimming, dancing, trimming a Christmas tree, working on a computer, participating in a beauty contest, and jumping on a trampoline.

The Supreme Court of Georgia has held as follows:
In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

(Emphasis supplied.) Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999).

In this case, the overwhelming evidence, including Heck’s own admissions during his interview with the investigator, showed that he regularly invited children into his bedroom to watch movies and to “play” by wrestling with them, tickling them, and chasing them. In addition, Heck admitted that S. A. saw his (Heck’s) penis — and vice versa — and he admitted that he did not consider it inappropriate to wrestle with S. A. while the boy was in his underwear on his (Heck’s) bed. Given this evidence, as well as Heck’s numerous prior acts of child molestation, we conclude that the trial court did not err in finding that the nudist colony videotapes and the brochure were relevant to Heck’s bent of mind, nor do we find any abuse of discretion in admitting this evidence at trial, with its significance to be determined by the jury. See State v. Tyson, 273 Ga. 690, 694 (4) (544 SE2d 444) (2001) (ruling that “the possession of photographs of nude young girls can be linked to the crime of molestation of a young girl” and, thus, were admissible at trial. In addition, the Court declined to reverse the defendant’s conviction based on the possibility that a separate piece of evidence, a nudist camp magazine, could not be linked to the crime charged.).

Further, even if this Court were to accept Heck’s argument that it was error to admit the videotapes and the brochure because they do not show the adults and/or the children actually engaging in any sexual acts and are, therefore, irrelevant because they are not “sexually explicit,” we find that any error was harmless due to the other, overwhelming evidence of Heck’s guilt. Phillips v. State, 269 Ga. App. 619, 627 (5) (b) (604 SE2d 520) (2004); Lunsford v. State, 260 Ga. App. 818, 822-823 (4) (581 SE2d 638) (2003).

(b) As for the other “non-sexual” items, such as the little girls’ panties, plastic hair barrettes, lollipops, children’s movies, etc., given the fact that Heck lived alone, had no children, regularly invited children into his bedroom to “play” and to watch movies, and had previously committed numerous acts of child molestation, the trial court did not err in concluding that the evidence “ demonstrate [s] [Heck’s] inclination towards, or preoccupation with, children.” We find no abuse of discretion in the court’s admission of the items as evidence of Heck’s bent of mind to commit child molestation.

Further, even if the items should not have been admitted because they were not directly linked to the charged crimes or because they might have suggested that Heck may have committed previous acts of child molestation that were not otherwise proved, we conclude that any error in admitting them was harmless in light of the other, overwhelming evidence of Heck’s guilt, especially his admissions and the evidence that conclusively showed that he had, in fact, committed numerous prior acts of child molestation. Phillips v. State, 269 Ga. App. at 627-628 (5) (c).

3. Heck contends that he received the ineffective assistance of counsel when his trial counsel and the attorney assisting him misstated the law and erroneously advised him regarding his right to testify by telling him that, if he testified at trial, he would waive his right to have counsel present the final closing argument. According to Heck, he was prejudiced by this erroneous advice, because if he had been properly advised, he would have testified at trial.

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. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003).

At the time of Heck’s trial in July 2004, OCGA § 17-8-71 read as follows: “After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.” A separate statute, OCGA § 24-9-20 (c), provided an exception to the rule, as follows: “In the event that a defendant elects to be sworn and examined, he shall not lose his right to open and conclude the argument to the jury, if he has not introduced other evidence in the trial.”

(a) During the hearing on Heck’s motion for new trial, both attorneys specifically testified that they knew the correct, applicable law at the time of Heck’s trial, and they emphatically denied telling Heck that, if he testified at his trial, he would waive his right to present the final closing argument. Although Heck claimed otherwise, the trial court, in denying Heck’s motion, found that Heck “produced absolutely no reliable evidence” to show that the attorneys gave him the erroneous advice. (Emphasis supplied.) Because the record supports this finding and this Court must accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, we agree with the trial court’s conclusion that Heck has failed to meet the first prong of the Strickland test by showing that trial counsel provided deficient representation. Robinson v. State, 277 Ga. at 75-76.

(b) Moreover, Heck has failed to show that, even if the attorneys gave him erroneous advice, the error resulted in any prejudice to his defense. At the hearing on his motion for new trial, Heck proffered the testimony that he claims he would have given at trial if he had been properly advised. This testimony included a multitude of statements that duplicated the State’s evidence, corroborated the victims’ testimony, conflicted with his interview statements to the police, and/or supported his convictions and were not supported by other evidence at trial, such as the following statements: he slept in the same bed with S. A.; he wrestled with S. A. on his (Heck’s) bed while the boy was dressed only in his underwear; S. A. watched part of a pornographic videotape while in Heck’s bedroom; S. A. took a bath in Heck’s master bathroom; S. A. may have seen Heck’s penis and vice versa; S. B. and her stepbrothers had watched movies inside his bedroom; he put S. B. on his lap in his wheelchair, tickled her, and grabbed her on her “bottom” when she started to fall; he collected the little girls’ panties that were found under his sink when he cleaned vacated homes in the neighborhood and planned to distribute them to a friend who had five children; he had molested some of the similar transaction victims; and he took medication to suppress his sexual urges toward children.

Decided January 13, 2012.

Kevin Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Melinda A. Wynne, Assistant District Attorney, for appellee.

Accordingly, given this proffered testimony and the overwhelming evidence of his guilt presented at trial, Heck has failed to show that there is a reasonable probability that the outcome of his trial would have been different if he had testified in his own defense. Robinson v. State, 277 Ga. at 75-76. Therefore, the trial court did not err in finding that there was no merit to his ineffective assistance claim.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

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

       The boy’s mother later learned that, during at least one of the two sleepovers, Heck’s sister left the trailer during the night, so that Heck was alone with S. A., but, when S. A. tried to go home, Heck would not let him.

       Although the pornographic videotape was not played for the jury, an officer who had viewed the videotape testified that it appeared that someone had altered it by adding numerous recordings of children’s television commercials to the tape and distributing the commercials among the pornographic scenes.

       The record shows that Heck was indicted for committing two counts of child molestation between September 1 and October 31, 2001, when he fondled the penis of S. A. and made S. A. fondle his (Heck’s) penis. The indictment also charged Heck with enticing a child for indecent purposes based on his taking S. A. into his (Heck’s) bedroom for the purpose of molesting him. In addition, Count 4 of the indictment alleged that Heck molested S. B. by fondling her vaginal area on or about May 1, 2002.

       In 2005, the Georgia General Assembly amended OCGA § 17-8-71 to read as follows: “After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. The defendant shall be entitled to make a closing argument prior to the concluding argument of the prosecuting attorney.” The amended provision was applicable to all trials that commenced on or after July 1, 2005. Ga. L. 2005, p. 20, § 10.

       In the same Act that amended OCGA § 17-8-71, the General Assembly deleted this provision. Ga. L. 2005, p. 20, § 14.


text:
    A12A0061.
    GRAYDON v. THE STATE.
    (722 SE2d 173)
   Ellington, Judge.

Bradley Graydon entered a guilty plea in the Superior Court of Whitfield County to felony theft by shoplifting, OCGA § 16-8-14 (a). See also OCGA § 16-8-14 (b) (2) (felony punishment when the stolen property exceeds $300 in value). The trial court denied Graydon’s request for first offender treatment. Graydon filed a motion to vacate his judgment of guilt and sentence on the basis that the trial court applied a mechanical sentencing formula and, thus, failed to exercise its discretion as required under the First Offender Act, OCGA § 42-8-60 et seq. The trial court denied Graydon’s motion, and he appeals. Finding no error, we affirm.

The First Offender Act
provides that, for a defendant without prior felony convictions, a court may defer entering a judgment of guilt and place the defendant on probation or in confinement. While the decision whether to sentence a defendant as a first offender lies entirely within the trial court’s discretion, the trial court is required to exercise that discretion rather than apply an inflexible rule.

(Citations and punctuation omitted.) Wnek v. State, 262 Ga. App. 733, 733-734 (586 SE2d 428) (2003). “[A] trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” (Citation and punctuation omitted.) Shell v. State, 264 Ga. App. 547, 550 (2) (591 SE2d 450) (2003). There is a presumption, however, that a trial court regularly and correctly conducted the proceedings. Powell v. State, 271 Ga. App. 550, 552 (610 SE2d 178) (2005); Camarón v. State, 246 Ga. App. 80, 83 (2) (539 SE2d 577) (2000). We will remand only when the record clearly establishes either that the trial court refused to consider first offender treatment on the merits or erroneously believed that the law did not permit such an exercise of discretion. Steele v. State, 270 Ga. App. 488, 491 (606 SE2d 664) (2004); Shell v. State, 264 Ga. App. at 550 (2).

In rejecting Graydon’s request for first offender treatment, the trial court explained that, ‘‘under most circumstances,” it did not grant requests for first offender treatment in cases involving theft but ‘‘[t]ypically” granted it in cases such as those involving “simple possession of a drug without any other aggravating circumstances.” At the hearing on Graydon’s motion to vacate his sentence, the trial court further explained:

I have no absolute rule in regard to first offender [treatment]. As a practical matter, however, I’m inclined to give it to people who [have a] first drug offense. Those [cases] involving serious dishonesty, like theft, I’m not inclined to give [it]. That doesn’t mean I wouldn’t in a very unusual case. But[,] the felony theft by shoplifting, the nature of the offense was the primary requisite that went into [denying Graydon’s request].

Decided January 13, 2012.

Lee A. Feeley, for appellant.

Kermit N. McManus, District Attorney, Susan Franklin, Assistant District Attorney, for appellee.

The trial court’s statements show neither an outright refusal to consider first offender treatment nor an erroneous belief that the law does not permit first offender treatment in such a case. The record shows, rather, that the trial court was aware that it could treat Graydon as a first offender but, after considering the conduct Gray don admitted, exercised its discretion not to do so. Thus, the judgment must be affirmed. Steele v. State, 270 Ga. App. at 491-492.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       See, e.g., Wnek v. State, 262 Ga. App. at 735 (Trial court failed to exercise its discretion where it had a policy of not granting a request for first offender treatment to a defendant who goes to trial and is found guilty by a jury.); Wilcox v. State, 257 Ga. App. 519, 520-521 (571 SE2d 512) (2002) (Trial court failed to exercise its discretion where it had a per se rule of refusing to permit first offender treatment in armed robbery cases.); Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993) (Trial court failed to exercise its discretion where it had a policy of never granting a request for first offender treatment in a case in the superior court.).


text:
    A12A0197.
    KELLY v. THE STATE.
    (722 SE2d 175)
   Ellington, Judge.

A Richmond County jury found James Kelly guilty beyond a reasonable doubt of theft by taking (automobile), OCGA § 16-8-2 (a). Following the denial of his motion for a new trial, Kelly appeals, contending that the trial court erred in denying his motion for a directed verdict of acquittal. Finding no error, we affirm.

In reviewing the denial of a motion for a directed verdict of acquittal, we apply the same standard of review applicable to a challenge to the sufficiency of the evidence. Under that standard, we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Clement v. State, 309 Ga. App. 376, 377 (1) (710 SE2d 590) (2011). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The appellate court

does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004). In addition, in cases dependent on circumstantial evidence, questions as to the reasonableness of a defendant’s explanation of circumstantial facts or an alternative hypothesis of events are also for the jury to resolve. Viers v. State, 303 Ga. App. 387, 390 (1) (693 SE2d 526) (2010). “Where a jury has found that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except that of guilt, its findings will not be disturbed unless the verdict is unsupportable as a matter of law.” (Punctuation and footnote omitted.) Id.

Viewed in the light most favorable to the verdict, the evidence shows that on April 30, 2008, Kelly stopped at Lightning Automotive in Richmond County and asked about a 1996 Lincoln Town Car that was parked on the lot and marked “for sale.” The shop’s owner told Kelly to call the car’s owner and gave him the number. After the car’s owner gave his permission for a test drive, Kelly showed the shop’s owner his driver’s license and obtained the car key, which was an original issue key bearing the Lincoln Continental logo. Kelly drove away in the car and returned after 30 to 35 minutes. The following morning, the shop’s owner discovered that the car had been stolen.

On May 2, 2008, a police officer encountered Kelly standing by the car with the hood raised. Kelly told the officer that he was having trouble with the car. As the officer checked on the car’s registration, Kelly dropped the hood of the car and drove away. The officer then received a response to his tag query that the car had been stolen, searched the area, and found Kelly driving into a nearby grocery store lot. Kelly had a duplicate key for the car, not the original issue key he had used for the test drive. Later, the automotive shop’s owner viewed a photographic lineup and picked a photograph of Kelly as being the man who test drove the car the day before it was stolen from the shop.

Kelly contends that the evidence failed to exclude his alternative hypothesis that someone else stole the car and then conveyed it to him. This determination, however, was for the jury to make. Evidence that Kelly showed an interest in the car, had the opportunity to have a duplicate key made, was driving the car hours after it was stolen using a duplicate key, and fled from the officer, even while the car was supposedly malfunctioning, authorized the jury to infer that Kelly stole the car from the automotive shop. Because the verdict was not insupportable as a matter of law, Kelly’s argument presents no basis for reversal.

Decided January 13, 2012.

Peter D. Johnson, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       See OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”).

       See Tauch v. State, 305 Ga. App. 643, 645-646 (1) (700 SE2d 645) (2010) (Evidence that a bank’s ATM was dragged to a nearby grassy lot, that the defendant’s vehicle was observed at the bank approximately two hours before the theft was reported and shortly after the alarm was activated, that the defendant’s vehicle had a tow strap with a large metal hook tied to it, that defendant fled from the police, and that the defendant possessed black electrical tape and gloves upon his arrest was sufficient to sustain the defendant’s theft conviction.); Rautenberg v. State, 178 Ga. App. 165, 167 (1) (a) (342 SE2d 355) (1986) (Evidence that the defendant had the opportunity to commit the theft, that the recently stolen goods were found in his truck when he was stopped by a GBI officer the following morning, and that he falsely told the officer there was “nothing” in the back of his truck was sufficient to sustain the defendant’s theft conviction.); Ivester v. State, 66 Ga. App. 563 (1) (18 SE2d 508) (1942) (Evidence that the defendant was a passenger in a recently stolen car, which had a stolen tag, that he lied about having borrowed the car when the car was stopped by a trooper, and that he and his co-defendants then fled from the police was sufficient to sustain the defendant’s theft conviction.).