text:
    A14A1388.
    INGRAM v. THE STATE.
    (763 SE2d 891)
   Branch, Judge.

Marquis Ingram appeals his conviction of armed robbery and possession of a firearm during the commission of a crime, as well as the denial of his motion for new trial. On appeal, he contends the trial court erred by denying his motion to suppress his custodial statement, that his trial counsel was ineffective, and that the evidence was insufficient to support the verdict. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that on the morning of November 18, 2009, Ingram, co-defendant Alexander Williams, and another man entered Jason Pope’s Stone Mountain apartment under false pretenses. Williams put a pistol to Pope’s head, and he and the other two men hit Pope with pistols, tied Pope up, and stated that they wanted “money and . . . weed,” which Pope denied having. Ingram and his co-defendants then took many items that belonged to Pope and his roommate, including Pope’s television, jacket, cell phone, and laptop computer. At trial, Pope identified Ingram as one of the men and testified that he had seen Ingram in the neighborhood on a prior occasion.

At approximately 1:40 p.m. on the day of the robbery, police stopped a green Honda for speeding on Interstate 20 in DeKalb County; the car was occupied by four men, including Ingram. At some point during the stop, the officer learned that the police were looking for a green Honda Accord in connection with a suspected crime. Officers detected the odor of marijuana, the men were removed from the vehicle and patted down for officer safety, and the officers summoned a drug-sniffing K-9. The officers found one handgun on Ingram’s person, and they recovered three other handguns during the stop. The K-9 alerted on the Honda during a free-air sniff, which led to a search of the car, and three of the men, including Ingram, were placed under arrest at the scene and then transported to police headquarters. Ingram was found in possession of Pope’s cell phone at the time of his arrest. During the search of the car, the officers recovered Pope’s television and laptop computer, as well as other items that belonged to Pope’s roommate.

At police headquarters, Ingram was placed in the interview room at about 3:35 p.m. Officer Zeric of the violent crime task force (gun unit) read Ingram his Miranda rights at about 3:52 p.m. Shortly thereafter, Ingram gave a statement in which he explained how he had obtained the gun and admitted that he knew the driver of the Honda. The interrogation by Zeric lasted approximately 20 minutes. Shortly after he left the interview room, Zeric learned that major-felony detectives suspected that Ingram may have been involved in the Pope armed robbery. Those detectives, including Detective Scott Black, took over Ingram’s case, and Black began to interview the suspects, including Ingram. Zeric told Black that Ingram had already been read the Miranda warning and had consented to giving a statement.

Black’s first contact with Ingram occurred sometime between 4:30 and 5:30 p.m., and he interviewed Ingram in the same interview room that Zeric had used. Black did not reread Ingram his Miranda rights, although he asked Ingram at one point if he understood his Miranda rights as explained by Zeric. Ingram answered that he did. At approximately 6:30 p.m., Ingram gave a statement. Between 7:00 and 7:59 p.m., Black wrote out Ingram’s statement in which Ingram admitted entering Pope’s apartment, pointing a gun at Pope’s head, tying Pope up, hitting Pope, and taking items from Pope’s apartment.

1. Prior to trial, Ingram moved to suppress his statement on the ground that he should have been read his Miranda rights a second time at the beginning of Black’s interrogation. The trial court denied the motion, reasoning that Zeric properly informed Ingram of his Miranda rights, that there is no duty to repeat the Miranda warnings when separate interviews are part of a continuing interrogation, and that Black’s interview of Ingram was part of a continuing interrogation.

“The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances.” Vergara v. State, 283 Ga. 175, 176 (657 SE2d 863) (2008) (citation omitted). When the appellate courts review the trial court’s decision on a motion to suppress, “the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011) (citation omitted).

Here, the trial court found that the Black interview was part of a continuing interrogation; that conclusion is supported by the facts and the law. Although Ingram argues that the break between the Zeric interview and the beginning of the Black interview amounted to five hours, the evidence presented at the Jackson-Denno hearing and at trial shows that the break could have been less than thirty minutes. Zeric’s interview lasted approximately twenty minutes starting eight or more minutes before 4:00 p.m., and Black testified that he first made contact with Ingram between 4:30 and 5:30 p.m. Thus, the trial court was not clearly erroneous when it concluded that the two interviews were part of a continuing interrogation. See, e.g., Sosniak v. State, 287 Ga. 279, 285 (1) (B) (695 SE2d 604) (2010) (trial court’s finding that interviews were part of a continuing interrogation was supported by the record when two interviews were conducted in one day). Moreover, the Supreme Court of Georgia has held that the State has no duty to repeat Miranda warnings in separate interviews that are part of a continuing interrogation. Williams v. State, 244 Ga. 485, 488 (4) (b) (260 SE2d 879) (1979) (no duty to repeat warnings given the day before where they were part of a continuing interrogation); Carswell v. State, 279 Ga. 342, 344 (2) (b) (613 SE2d 636) (2005) (additional Miranda warnings not required for a series of five interviews held over the course of twelve to fourteen hours).

Finally, there is no merit to the argument that additional Miranda warnings were required because Black raised a new topic — the possibility that Ingram was involved in the armed robbery — without giving a new Miranda warning. See Christenson v. State, 261 Ga. 80, 86 (3) (402 SE2d 41) (1991) (“a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege”) (citation and punctuation omitted).

Decided September 23, 2014.

Dawn M. Belisle, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

For all these reasons, the trial court did not clearly err when it denied Ingram’s motion to suppress.

2. Ingram contends his trial counsel was ineffective because counsel failed prior to trial to review thoroughly Ingram’s video-taped statement, which led to the court denying the motion to suppress the statement. According to Ingram’s brief and his counsel’s testimony at the hearing on the motion for new trial, Ingram specifically argues as follows: Black testified at the hearing on the motion to suppress that he asked Ingram at the beginning of the interview whether he remembered the Miranda warning given by Zeric; at trial, the audio tape of the interrogation shows that Black failed to ask that question until much later in the interview; had counsel thoroughly reviewed the tape, of which he was aware, prior to trial, he would have known when Black asked this question; accordingly, counsel was not prepared at trial to cross-examine Black with regard to his testimony.

This argument is made moot by our holding in Division 1. Ingram could not have been harmed by this alleged failure on the part of counsel because even if Black had never asked Ingram whether he remembered the Miranda warning given by Zeric, Ingram’s statement would have been admissible as a part of a continuing interrogation that began with a proper Miranda warning. Thus, it is legally irrelevant exactly when Black asked Ingram whether he remembered the earlier Miranda warning.

3. As shown by the above statement of facts, the evidence presented at trial, including Ingram’s statement, was sufficient to support the verdict finding him guilty of armed robbery and possession of a firearm during the commission of a crime. OCGA §§ 16-8-41 (a); 16-11-106. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       Neither party has followed the rules of this Court with regard to the proper form for citation to the appellate record. We remind the Bar that the Rules of the Court of Appeals require that record and transcript citations must he to the volume or part of the record or transcript and the page numbers that appear on the appellate records or transcript as sent from the court below. See Rule 25.

       Although the form states that an officer read the Miranda rights at 1:52, Officer Zeric explained that the time on the form was a mistake.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0766.
    PERRY v. THE STATE.
    (764 SE2d 178)
    Decided September 24, 2014.

      Bennett & Connell, Matthew B. Bennett, for appellant.

      J. David Miller, District Attorney, Brian A. McDaniel, Assistant District Attorney, for appellee.
   Miller, Judge.

A jury found Randarius Perry guilty of four counts of violating the Georgia Street Gang Terrorism and Prevention Act (OCGA § 16-15-1 et seq.) (Counts 57 through 60), armed robbery (OCGA § 16-8-41 (a)) (Count 61), aggravated assault (OCGA § 16-5-21 (a) (1) (2010)) (Count 62), and two counts of possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (1)) (Counts 63 and 64). Perry appeals from his convictions; however, the case is not final and ripe for appeal.

At sentencing, the trial court orally announced that Count 58 would merge into Count 57, Count 60 would merge into Count 59, Count 62 merged into Count 61, and Count 64 merged into Count 63. The record, however, shows that the court only entered written sentences on Counts 57, 59, 61, and 63. The trial court did not enter written sentences on Counts 58, 60, 62, or 64, nor did the trial court enter a notation showing that these counts merged into other counts for purposes of sentencing.

When “a multi-count indictment is the subject of one trial and the factfinder returns a verdict of guilty on each count of the indictment, the case is not final and subject to appeal until a sentence has been entered on each count of the indictment.” Keller v. State, 275 Ga. 680 (571 SE2d 806) (2002). Since the trial court did not enter a written sentence on each count, Perry’s case is still pending in the trial court and is not ripe for appeal. Id. Therefore, this case is remanded with direction for the trial court to enter a written sentence disposing of all counts of which Perry was found guilty. “After such entry, the case may be transmitted to this [C] ourt for re-docketing because the notice of appeal, prematurely filed, then will have ripened.” (Footnote omitted.) Bass v. State, 284 Ga. App. 331, 332 (643 SE2d 851) (2007).

Case remanded with direction.

Doyle, P. J., and Dillard, J., concur.


author: Phipps, Chief Judge.

text:
    A14A0897.
    BAGWELL v. THE STATE.
    (764 SE2d 149)
   Phipps, Chief Judge.

Howard Bagwell was charged with committing 22 sexual offenses against his minor granddaughter, K. B., during the several years she lived in his home. Convicted on all counts, Bagwell filed a motion for new trial. He argued, inter alia, that his right to be present at critical stages of the prosecution was violated when certain bench conferences were held and that his trial counsel rendered ineffective assistance. After a hearing, the trial court denied Bagwell’s motion. In this direct appeal, Bagwell maintains that his constitutional rights were violated. We affirm.

At the jury trial, the state showed the following. In June 2003, eight-year-old K. B. began living with her paternal grandparents, Bagwell and his wife. Soon thereafter, K. B. testified, Bagwell began a course of sexual abuse, which included oral sodomy of her vagina more often than once a month, digital penetration of her vagina more often than once a week, and sexual intercourse more often than once a week.

Within a year of K. B.’s moving into her grandparents’ residence, in February 2004, the Division of Family and Children Services (DFCS) opened an investigation based on reports from K. B.’s school that K. B. was being sexually abused. K. B. had made such a disclosure to her playmate, who told her own mother; the mother then relayed K. B.’s allegations to personnel at the girls’ school. DFCS conducted a forensic evaluation of K. B. on February 11. But during an interview, which was recorded and later played for the jury, K. B. made no disclosure of abuse. DFCS closed its investigation in March 2004.

At trial, K. B. explained that she had made no disclosure to DFCS (or to her grandmother) at that time because she loved her grandmother and did not want to be separated from her. But as K. B. continued living with her grandparents, Bagwell continued sexually abusing her.

One such episode occurred in February 2007. Bagwell came into K. B.’s bedroom, put his hand inside her pants and underwear, and digitally penetrated her. After Bagwell left the residence, because she wanted the abuse to end, K. B. told her grandmother that Bagwell had hurt her. When her grandmother confronted Bagwell by asking what he had done to K. B., he responded, “[S]omething I shouldn’t have.” K. B.’s grandmother immediately sent K. B. to live with her (K. B.’s) father.

About a week later, on February 20, 2007, K. B. told her school counselor that “something very bad” had happened between her and her grandfather and that her grandmother had sent her to live with her father. K. B. explained at trial that she had confided in the counselor because she had determined that her family did not believe her, as they had done nothing but send her to live with her father. The counselor notified DFCS.

That same day, DFCS placed K. B. in protective custody and contacted an investigator with the sheriff’s office. The next day, K. B. disclosed in a forensic interview that Bagwell had sexually abused her about a week before.

Bagwell was arrested. During a police interview on February 22, 2007, Bagwell insisted, “I don’t care what anybody says. I didn’t have sex with that girl.” Bagwell admitted, however, going into K. B.’s bedroom on February 14 and 15,2007 and rubbing K. B.’s breasts and vagina, both on top of and underneath her clothes. When asked why he had done that to K. B., Bagwell answered that K. B. had always been flirting with him and “coming on” to him, so he had discerned that that was what she wanted. Bagwell expressed, however, that what he had done was wrong.

On February 12, 2009, K. B. submitted to another forensic interview, because she had begun disclosing additional instances of Bagwell’s abuse. During that interview, K. B. told of incidents of sexual abuse perpetrated by Bagwell before February 14, 2007.

The jury found Bagwell guilty of the twenty-two charged offenses, alleged to have occurred between September 1, 2003 and December 31, 2007: seven counts of aggravated sexual battery, five counts of aggravated child molestation, five counts of rape, and five counts of child molestation.

1. Bagwell claims that holding nine bench conferences in his absence violated his constitutional “right to be present, and see and hear, all the proceedings which [were] had against him on the trial before the [cjourt.” We disagree.

Concerning a defendant’s absence from bench conferences, the Supreme Court of Georgia espoused recently in Heywood v. State:

Bench conferences, or sidebars, are a common occurrence during jury trials, allowing the attorneys for the parties to discuss matters with the judge without being heard by the jury and without the delays inherent in excusing the jurors from the courtroom and bringing them back in. Most bench conferences involve questions of law and consist of essentially legal argument about which the defendant presumably has no knowledge, and many other bench conferences involve logistical and procedural matters. A defendant’s presence at bench conferences dealing with such topics bears no relation, reasonably substantial, to the fullness of his opportunity to defend against the charge, and the constitutional right to be present does not extend to situations where the defendant’s presence would be useless, or the benefit but a shadow. Thus, a defendant’s right to be present is not violated by his absence from such bench conferences.

The Heywood Court further reiterated that a defendant’s right to be present is not violated where there is waiver, explaining:

A defendant may personally waive his right to be present at a stage in the trial, or counsel may waive this right for the defendant. But in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.

The foregoing principles govern this contention to an outcome adverse to Bagwell.

Two of the nine bench conferences, as Bagwell readily concedes in his brief, “dealt with taking breaks.” Conducting such bench conferences in Bagwell’s absence did not violate his constitutional right to be present.

A third bench conference was not transcribed. And as Bagwell acknowledges in his appellate brief, “[t]his means we have no clear understanding as to what specifically was discussed and how it may have impacted Appellant’s rights.” Bagwell, consequently, has not shown that his right to be present was violated.

In three other bench conferences, the trial court heard legal argument concerning whether to hold a Jackson-Denno hearing and whether certain other evidence was admissible. Because these bench conferences involved questions of law and consisted of essentially legal argument about which Bagwell presumably had no knowledge, his right to be present was not violated.

The three remaining bench conferences concerned procedural and logistical matters relating to striking a jury. Pretermitting whether Bagwell was entitled to be present, we find no reversible error in the trial court’s conclusion that Bagwell showed no entitlement to a new trial based on his absence therefrom.

Bagwell’s trial lawyer testified at the motion for new trial hearing that he typically did not invite defendants to bench conferences, routinely opting to inform his clients about the discussions upon returning to the defense table. And the trial transcript indicates that, during these three conferences, as well as during the other six, Bagwell was in the courtroom; Bagwell has made no assertion otherwise. “Appellant’s failure to voice any objection to his absence from [the] bench conference [s], either directly or through counsel, constituted acquiescence in his counsel’s waiver of his right to be present.”

2. Bagwell contends that the trial court erred by denying his claim of ineffective assistance of trial counsel.

In order to prevail on such a claim, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different____If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the [cjourt.

An appellate court accepts the trial court’s factual findings and credibility determinations unless clearly erroneous, but independently applies the legal principles to the facts.

(a) Bagwell complains that his trial lawyer did not request a continuance to review subpoenaed materials that the lawyer received from the state on the morning of trial. Purportedly, these were training materials that had been used by the individual who conducted the forensic interview of K. B. in 2007. Bagwell’s post-conviction lawyer argued at the motion for new trial hearing that “[Bagwell’s trial lawyer] should’ve asked for a continuance to give himself the opportunity to get up to speed and perform an appropriate and thorough cross-examination” of that witness.

Bagwell’s trial lawyer testified at the motion for new trial hearing that, although he had not received the materials until shortly before trial, he had not then believed that he needed a continuance. The lawyer recounted that he was already familiar with that forensic interviewer because, prior to Bagwell’s trial, he had been defense counsel in one or two trials in which she had testified for the state as an expert and he had then cross-examined her. The lawyer testified that he had thus already prepared for cross-examining her in the instant case.

Bagwell’s complaint is unavailing. At the motion for new trial hearing, Bagwell made only a vague claim that his trial lawyer would have been better prepared had he been granted a continuance, and he cited nothing in the materials nor showed how any part(s) thereof might have been helpful to the defense. Pretermitting whether it constituted deficient performance to fail to request a continuance, we conclude that Bagwell failed to show any prejudice.

(b) Bagwell complains that his trial counsel failed to call in his defense three individuals. “The decisions on which witnesses to call, whether and how to conduct cross examinations, . . . and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.”

Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.

(i) Bagwell asserts that his trial lawyer performed deficiently by failing to call two of his granddaughters — one girl was about a year younger than K. B., and the other girl was about four or five months younger than K. B. Both girls testified at the motion for new trial hearing that they were frequently at the Bagwells’ home when K. B. was there, that they had observed K. B.’s interactions with Bagwell, that they had observed no questionable behavior by their grandfather, and that K. B. never appeared frightened of him.

At the motion for new trial hearing, Bagwell’s trial attorney testified that he had interviewed each potential witness about whom Bagwell had told him. The lawyer did not recall, however, that Bagwell had identified either of those two granddaughters as having any testimony helpful to the defense.

Furthermore, as the lawyer pointed out at the hearing, the jury was presented similar testimony from other family members. One of Bagwell’s daughters testified at the trial that she was frequently at her parents’ home when K. B. was there, that K. B. never appeared afraid of Bagwell, that K. B. never acted unusual around him, that K. B. never indicated that anything inappropriate was going on, and that K. B. seemed happy. Bagwell’s other daughter likewise described K. B. and Bagwell’s interactions: “They got along fine. I mean, she adored her grandfather. She had him wrapped around her finger actually.” And during cross-examination of Bagwell’s wife (K. B.’s paternal grandmother), the defense lawyer elicited testimony that during the years K. B. lived with her and Bagwell, K. B. never indicated to her that she was afraid of Bagwell.

Because trial counsel’s strategy in this regard cannot be regarded as one that no competent attorney would have followed, Bagwell failed to demonstrate deficient performance by this claim.

(ii) The third person whose testimony Bagwell claims his trial lawyer should have presented to the jury was the individual who conducted the forensic interview with K. B. in February 2004, during which K. B. made no disclosure of sexual abuse.

At the motion for new trial hearing “ [e] ither the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness’s testimony.” Here, [Bagwell] did not produce the witness to give testimony at the motion for new trial hearing or otherwise provide a legally recognized substitute as to what the witness would have testified at trial.

As a result, when Bagwell’s post-conviction lawyer was presenting closing argument on this issue, the trial judge interjected, “[Y]ou’re not presenting what she would’ve testified to. . . . [Y]ou’re just speculating as to what she might’ve testified to; right?” The lawyer responded, “Yes sir.”

Decided September 24, 2014.

Katherine M. Mason, H. Lee Prescott, Jr., for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Kristopher M. Bolden, Assistant District Attorneys, for appellee.

Mere speculation that the forensic interviewer could have added testimony helpful to his defense fails to demonstrate any prejudice. Moreover, the jury was shown the recording of the February 2004 forensic interview.

Given these circumstances, Bagwell has shown no merit in his contention that the trial court erred by rejecting his claim of ineffective assistance of trial counsel.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

        Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998) (citation and emphasis omitted).

       292 Ga. 771 (743 SE2d 12) (2013).

       Id. at 774 (3) (citations and punctuation omitted).

       Id. at 775 (3) (citation omitted) (citing Ward v. State, 288 Ga. 641, 646 (706 SE2d 430) (2011), for the proposition that “acquiescence means a tacit consent to acts or conditions, and implies a knowledge of those things which are acquiesced in”) (punctuation omitted).

       See Heywood, supra at 774 (3); Smith v. State, 319 Ga. App. 590, 596 (6) (737 SE2d 700) (2013) (rejecting the defendant’s claim that his right to be present was violated where the challenged sidebars involved only “housekeeping matters”).

       See Huff v. State, 274 Ga. 110, 111-112 (2) (549 SE2d 370) (2001) (reasoning that “mere speculation” about what was discussed during a bench conference shows no harm and thus could not serve as a basis for the grant of a new trial); Lopez v. State, 326 Ga. App. 770, 777 (6) (757 SE2d 436) (2014) (“[Appellant] has not shown what subjects were discussed at the bench conferences that occurred outside of his presence; therefore, he has not shown any meaningful relationship between his presence or absence at the conferences and his opportunity to defend against the charges against him.”); Cunningham v. State, 240 Ga. App. 92,96 (2) (522 SE2d 684) (1999) (concluding that appellant waived issue concerning substance of bench conference, where bench conference was not transcribed for the record).

       See Heywood, supra; Parks v. State, 275 Ga. 320, 324-325 (3) (565 SE2d 447) (2002) (concluding that the defendant’s right to be present was not violated by his absence from bench conferences on the admissibility of testimony and other evidence, the merits of objections regarding trial procedures, the content of a limiting instruction, the scheduling of a witness’s testimony, and the prosecutor’s request for a 15-minute delay in the trial); Huff, supra (holding that the defendant’s right to be present was not violated by his absence from a jury charge conference and an in-chambers conference discussing whether the defendant’s custodial statement should go out with the jury).

       Compare, e.g., Heywood, supra (holding that appellant’s right to he present was not violated by holding in his absence bench conferences that concerned “only legal arguments regarding objections and proper trial procedure or logistical matters”), with Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005) (“Proceedings at which the jury composition is selected or changed are a critical stage at which the defendant is entitled to be present.”).

       See generally Milinavicius v. State, 290 Ga. 374, 377 (3) (721 SE2d 843) (2012) (noting that the record did not mention the exact moment appellant entered the courtroom between the time the court ordered him to be brought into the courtroom and the time the recess was concluded, but determining that the absence of that information did not prove appellant was not in the courtroom at the time certain discussions were had; applying, therefore, “the presumption of regularity to conclude that appellant was inside the courtroom when necessary).

        Heywood, supra at 774-775 (3) (concluding that appellant waived his right to be present at a bench conference that discussed whether to replace prospective jurors, where the trial judge advised those in the courtroom, including appellant, about the topic of the bench conference, and appellant failed to voice any objection to his absence from this bench conference •— either directly or through counsel); Kennedy v. State, 274 Ga. 396, 397 (3) (554 SE2d 178) (2001) (“[B] ecause all of the bench conferences in question took place while [the defendant] was in the courtroom, and she voiced no objection to them, she has waived appellate review of the alleged improper conferences.”) (footnote omitted); Lopez, supra; Young v. State, 327 Ga. App. 852, 854 (2) (761 SE2d 801) (2014) (finding that appellant waived appellate review of alleged improper bench conferences during voir dire, where defense counsel testified at the motion for new trial hearing that defense counsel was present for all of the conferences, that each conference happened while the defendant was seated at counsel’s table, and that counsel told defendant what was happening; where both defendant and his counsel were present in the courtroom during the entire voir dire process, yet neither counsel nor defendant had objected).

        Crowder v. State, 294 Ga. 167, 169 (3) (751 SE2d 334) (2013) (citations and punctuation omitted); see Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Colzie v. State, 289 Ga. 120, 124 (3) (710 SE2d 115) (2011).

       See Grell v. State, 291 Ga. 615, 620 (4) (b) (732 SE2d 741) (2012) (pretermitting whether failure to request continuance constituted deficient performance, and ruling that appellant failed to demonstrate prejudice); Simmons v. State, 291 Ga. 664, 668 (5) (b) (732 SE2d 65) (2012) (determining that defendant failed to establish that he was prejudiced by his trial counsel’s failure to show him all documents in his file prior to trial, where defendant merely speculated that he could have given his counsel input on his file, but did not indicate what that input would have been); Walker v. State, 288 Ga. 174, 180 (3) (b) (702 SE2d 415) (2010) (rejecting claim of ineffective assistance of counsel for failure to request a continuance to review evidence, where “[appellant] presented no evidence at the motion for new trial hearing to support his bald assertion that there was a reasonable probability that the outcome of the proceeding would have been different had [his trial counsel] sought a continuance”); Wells v. State, 281 Ga. 253, 255 (2) (a) (637 SE2d 8) (2006) (rejecting claim of ineffective assistance of counsel for failure to request a continuance to find exculpatory evidence, where defendant did not make any proffer to show that the evidence would have been relevant and favorable).

        McDaniel v. State, 279 Ga. 801, 803 (2) (c) (621 SE2d 424) (2005) (citation and punctuation omitted).

        Rivera v. State, 295 Ga. 380, 384 (3) (761 SE2d 30) (2014) (citations omitted).

       See Shaw v. State, 292 Ga. 871, 875 (3) (a) (742 SE2d 707) (2013) (finding that the trial lawyer’s explanation for not calling the children as witnesses — that the evidence they could provide could be elicited from other witnesses — was not unreasonable).

       See McDaniel, supra.

        Crowder, supra at 169 (3) (quoting Dickens v. State, 280 Ga. 320, 322 (2) (627 SE2d 587) (2006)).

       See Crowder, supra (rejecting appellant’s argument that his trial counsel was ineffective for failing to call an expert witness, where appellant did not produce the witness to give testimony at the motion for new trial hearing or otherwise provide a legally recognized substitute as to what the witness would have testified at trial); Brown v. State, 293 Ga. 518, 519 (2) (748 SE2d 388) (2013) (rejecting appellant’s argument that his trial counsel was ineffective for failing to locate and subpoena a certain individual to testify as a witness on his behalf at trial, citing the principle that “[sjpeculation that [the individual] could have given testimony favorable to the defense does not establish prejudice”) (citation omitted).

       See Strickland, supra; Crowder, supra at 169 (3).


author: BARNES, Presiding Judge.

text:
    A14A0946.
    VIS v. HARRIS et al.
    (764 SE2d 156)
   BARNES, Presiding Judge.

Faythe Vis tripped and fell while a guest at a Sheraton Hotel in Atlanta. She sued hotel employee Niles Harris, hotel owner Star-wood Hotels & Resorts Worldwide, Inc., and hotel management company Amerimar Courtland Management Company, Inc. Although Vis served Amerimar with discovery requests along with the complaint and Amerimar answered, it never responded to the requests for admissions. A jury trial resulted in a defense verdict, and Vis appeals, contending that the trial court erred in sua sponte declaring that Vis improperly read Amerimar’s admissions to the jury at the beginning of the trial and in withdrawing them from the jury’s consideration. We agree that the trial court erred, and reverse.

Vis initially identified the hotel’s management or maintenance company as John Doe 1-2 in her complaint for damages, and then successfully moved to substitute Amerimar as a defendant. Amerimar’s agent was served with process and discovery requests on December 2, 2010. Vis moved for the entry of a default judgment against Amerimar in August 2010, and Amerimar moved to open the default. On October 27, 2011, the trial court denied Vis’s motion for a default judgment and granted Amerimar’s motion to open the default. While Amerimar answered the complaint, it admits that it never responded to the requests for admissions.

The parties had numerous discovery disputes as the litigation unfolded. In October 2012, the three defendants moved for summary judgment, arguing that the static defect on which Vis tripped was open and obvious, and that her knowledge of the defect was equal or superior to theirs. In response, Vis argued that the record showed the existence of jury questions and also argued that Amerimar had never answered her requests for admissions and therefore had admitted being at fault for causing damages to Vis. Vis included the requests for admission as an exhibit. The trial court stamped the defendants’ motion for summary judgment as “denied” without explanation.

Vis filed three pretrial orders as the case continued. In each one, her brief and succinct outline of the case included the statement, “The Amerimar defendant admitted the case through Admissions served on them without a response.” On the day trial began, the trial court signed the parties’ proposed consolidated pretrial order, which again contained the statement concerning Amerimar’s admissions.

At trial, after the parties gave their opening statements, the court directed Vis’s lawyers to call the first witness. One of Vis’s lawyers replied:

Your Honor, we have admissions of Amerimar Court-land Management Company. Number Eight, You’re at fault for the accident causing damages to the plaintiff. Number Nine, You did not have a proper inspection procedure in place on the date of the accident. Number Ten, the Plaintiff sustained serious injuries. Number 11, The medical expenses incurred by the Plaintiff are reasonable and customary. Number 12, You were warned of the defect prior to the accident. Number 13, No warnings were posted of the hazard prior to the Plaintiff’s fall. Number 14, You had notice of the hazard prior to the Plaintiff’s fall. Number 15, You were the proximate cause of the Plaintiff’s injuries. Number 16, Your negligence is the proximate cause of the Plaintiff’s injuries. Number 17, You had video cameras in the hotel at the time of the fall. Number 18, Your video cameras videotaped the plaintiff’s fall.

The defendants raised no objections. Vis’s other lawyer then said, “Thank you. Your Honor, we call as our first witness, Victor McMahon,” and the trial proceeded. McMahon was a guest at the hotel three weeks before Vis fell and testified he had also tripped on a rise in the carpet that was not visible. Another witness testified that he took photographs of the area where Vis fell and that the flooring under the carpet was uneven. A medical narrative was read into the record, Vis testified, and her husband testified briefly.

Vis rested, and the defendants moved for a directed verdict. Vis responded that she fell on a static defect that she proved was in existence three weeks before she fell, so notice to the defendants was presumed. She argued that this was not a case for directed verdict as it had not been a case for summary judgment “[f]or the same reasons as well in the motion for summary judgment as to Amerimar, which is conclusively established as well as any case against Courtland Hotels, LLC.” The trial court denied the motion, and the defendants called the assistant director of loss prevention, who testified about an incident report his predecessor had created after Vis fell. Over objection, the assistant director read statements from three hotel guests that had been included in the report, two of whom said it looked as if Vis fell because her shoe got stuck on the carpet. One of those guests subsequently testified that while the floor had a slight incline where Vis fell, that was not the cause of her fall; it was that her foot stopped and Vis lost her balance and fell. Finally, a witness who was qualified over objection as “an engineering expert for purposes of reviewing the area of plaintiff’s fall and providing testimony regarding any defect” testified that in 2012 he reviewed the area where Vis fell in 2008, that the carpet had been replaced there in 2011, and that he had seen no surface irregularity.

After both parties rested, the trial court dismissed the jury and directed the lawyers to remain for the charge conference. The court said, “[The law clerk] is going to go through the charges with y’all and narrow it down and go through what’s agreed and what’s not agreed and then we’ll go back and take the ones that we’ll give.” After a lunch break, the court reconvened and said:

First of all, I understand there is an issue regarding the admissions now that were read into the record after opening statements by the plaintiff. When that was done, I didn’t know what they were for, what they were being read for. Your co-counsel simply stood up and started reading them and did not obtain a ruling from this court regarding those alleged admissions and not [sic] what was the background for them and how they became admissions. That was not addressed. I’m going to have this case submitted to the jury as a negligence case, which is what we’ve been trying here for the last couple of days; so, that’s my ruling regarding those admissions.

After further discussion, the trial court allowed Vis’s counsel to make a record of the ruling, and Vis’s counsel first noted that the court had ruled absent any request from the defendants for affirmative relief and was attempting to “unring a bell that’s already been rung with the jury. We read those into evidence because we hid them in plain sight [,] the admissions we talked about today.” In response to the defendants’ motion for a directed verdict earlier in the trial, counsel noted, she had said, “Amerimar has conclusively established fault.” Counsel further noted, “We had, yesterday, properly read them into evidence at the start of our trial. There’s no law or authority that says we have to ask the judge’s permission to read admissions into evidence to my knowledge.”

The court replied that it had not made a determination or issued an order that

they were deemed admissions and there wasn’t agreement by the counsel. . . . What I thought he was reading were stipulations . . . when he just stood up and just started. He said I’m going to read this into the record, no background, no anything----He just stood up and just said, I’m going to read these into the record— No background, no anything, where it would have come from, no ruling from the court. He just started reading.

Vis’s counsel replied, “My statement to the court, your Honor, would be that that’s proper procedure. I’ve never done it any other way, particularly when we had it in the pretrial, the consolidated pretrial.” Then the court ruled:

All right. Well, I don’t want to get into a long, drawn[-]out discussion about it. I’m going to let you make the record of your objection to my ruling, which is that I’m going to have this case submitted as a negligence case in front of this jury, which is what we’ve been trying for the last couple of days, including you have put on evidence in the plaintiff[’s] case regarding this being a negligence case. And that’s what this jury is — that’s what I’m going to have submitted to the jury. And if you have an objection to that, then go ahead and make the record because I need to move on.

Vis’s counsel responded:

That’s what I’m trying to do, your Honor. I’m trying to make the record. There were three defendants in this case, two of which did not admit the case. That would be the case that we were making upon negligence. The third one, Amerimar Courtland Management, admissions were served on them by the sheriff on December 15,2010. The responses wouldbe due January 29, 2011, which would be the statutory 45-day period. As of today, no admission responses have been received from Amerimar, despite at least four plain warnings from plaintiff.

Vis’s counsel continued that on page ten of her brief in opposition to the defendants’ motion for summary judgment, a heading stated, “The Amerimar Courtland Management Company, Incorporated, the defendant [,] has admitted the case” and the brief then detailed how it had admitted the case by failing to respond to the request for admissions that had been served upon it. Counsel then noted that in proposed pretrial orders she filed on August 13,2013, and September 11,2013, and in the parties’ proposed consolidated pretrial order filed on September 19,2013, she said, “The Amerimar defendant admitted the case through admissions served on them without a response.” Counsel further noted that the admissions had been read into the evidence, and that he had responded to the defendants’ motion for directed verdict by noting, among other things, that the case had been conclusively proved against Amerimar, and the trial court had denied that motion. Therefore, Vis’s counsel concluded, it would be reversible error “not to continue to tell the jury that they have admitted the case.”

After Vis’s counsel thanked the court for the opportunity to perfect the record, the court asked if defense counsel had anything for the record, and counsel replied, “No, nothing for the record.” The trial court then asked if either party objected to its verdict form, and in response to Vis’s objection to providing a place for the jury to find that Vis had been contributorily negligent, the court replied, “All right,” then proceeded to list the requested charges it was going to give and gave the parties an opportunity to make objections. In her closing argument, Vis did not address Amerimar’s admissions.

1. Vis argues on appeal that the trial court erred in sua sponte withdrawing Amerimar’s admissions from the jury’s consideration after the close of evidence.

(a) Vis contends that, despite the trial court’s statements to the contrary, she was not required to obtain a ruling from the court that the admissions were admissions, nor was she required to obtain the court’s permission to use them during trial. Amerimar replied that, while it admits failing to respond to Vis’s requests for admissions, its “lack of response was not raised before the trial court before trial.” Amerimar further argues that reciting the admissions to the jury was not a proper method of introducing them as evidence.

OCGA § 9-11-36 (a) (1) allows a party to serve on the other party written requests for admission regarding any matter within the scope of discovery as set forth in OCGA § 9-11-26 (b). The matters are deemed admitted unless the recipient serves upon the party making the request written answers within 30 days of service or within 45 days of service of the summons and complaint. OCGA § 9-11-36 (a) (2). “Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” OCGA § 9-11-36 (b).

The statute does not prescribe the method by which admissions should be placed before the jury. Being substantive evidence, admissions must be placed into evidence at trial in some form to be considered by the factfinder. See, e.g., Bartosz v. Chapparal Enterprises, 271 Ga. App. 246, 248 (1) (609 SE2d 185) (2005) (“[A]n admission must be introduced into evidence before it can be considered by the trier of fact”); Harper v. Samples, 164 Ga. App. 511 (1) (298 SE2d 29) (1982) (appeals court cannot consider admissions that were not introduced in evidence at trial); Nat. Bank of Ga. v. Hill, 148 Ga. App. 688, 689 (1) (252 SE2d 192) (1979) (“[A]dmissions constitute matters of proof and of evidence and before they can be considered by the trier of the facts, they must be introduced in evidence.”).

Here, Vis’s lawyer announced to the court, “Your Honor, we have admissions of Amerimar Courtland Management Company,” and proceeded to read them out loud without any objection being raised. Reading the admissions to the jury clearly placed them into evidence.

The defendants contend that Vis failed to file into the trial court record the requests deemed admitted. Under OCGA § 9-11-29.1 (a) (5), however, a party is not required to file discovery material unless it “is to be used at trial... and said material has not previously been filed under some other provision of this chapter.” (Emphasis supplied.) As noted earlier, the record in this case establishes that Vis filed the admissions as an exhibit to her opposition to the defendants’ motion for summary judgment, and therefore they had previously been filed in compliance with OCGA § 9-11-29.1 (a) (5). She was not required to file them again at trial.

(b) Vis further argues that the trial court erred in withdrawing the admissions from the jury’s consideration, absent a motion from the defense and after the close of evidence. Amerimar responds that the trial court never withdrew the admissions from the jury’s consideration. Instead, the admissions were read into the record and the trial court never told the jury to disregard them. Thus, the defendants argue, Vis can show no harm.

As stated previously, “[a]ny matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” (Emphasis supplied.) OCGA § 9-11-36 (b). Subsection (b) also lays out the criteria that must be met to allow withdrawal, and there was no showing here that those criteria were met. See Elrod v. Sunflower Meadows Development, 322 Ga. App. 666, 668 (1) (745 SE2d 846) (2013) (party seeking withdrawal made showing that presentation of the merits would be subserved and opposing party failed to satisfy court that withdrawal would prejudice the maintenance of action or defense).

Amerimar did not answer Vis’s request and never moved to withdraw or amend its admissions; thus, the matters admitted were conclusively established as a matter of law, and Vis was not required to obtain a ruling by the trial court to that effect. A trial court has broad discretion to permit the withdrawal of an admission made by failing to timely respond to a request, which we review only for abuse. Velasco v. Chambless, 295 Ga. App. 376 (1) (671 SE2d 870) (2008). However, “the failure to make a motion to have admissions withdrawn or amended forecloses remedial action under [OCGA § 9-11-36 (b), and therefore] the requests for admissions which were not answered or objected to are deemed admitted.” Post-Tensioned Constr. v. VSL Corp., 143 Ga. App. 148, 150-151 (8) (237 SE2d 618) (1977); see also Brooks v. Roley & Roley Engineers, 144 Ga. App. 101, 101-102 (1) (240 SE2d 596) (1977) (verdict reversed where trial court refused to admit admissions as probative evidence, allowing them only for impeachment purposes).

Similarly, in this case Amerimar never moved to withdraw its admissions and the trial court lacked discretion to authorize their withdrawal. And while the trial court did not instruct the jury to disregard the admissions that had been entered into evidence, neither would it allow Vis to argue their conclusive effect to the jury. Thus, we cannot say that the trial court’s ruling on the admissions was harmless.

(c) Finally, although the defendants contend that we have nothing to review because the record is unclear about the trial court’s actual ruling and because Vis never tried to argue the effect of the admissions during her closing, it is clear from the trial court’s statements made after the close of evidence and after the parties had conferred with the court’s law clerk about charges that the court ruled that Vis could not argue to the jury that Amerimar had admitted it was at fault. The trial court thus improperly restricted Vis’s ability to argue the facts in evidence during her closing argument. As Vis notes in her Reply Brief, she would have been risking contempt if she had ignored the court’s ruling and argued the admissions anyway.

Decided September 24, 2014.

Timothy J. Santelli, for appellant.

Gray, Rust, St. Amand, Moffett &Brieske, Michael J. Rust, Nicole C. Leet, Cobb & Associates, Kendrick K. McWilliams, for appellees.

2. In light of our ruling in Division 1, Vis’s remaining enumeration of error regarding jury selection is moot.

Judgment reversed.

Boggs and Branch, JJ., concur.


text:
    A14A1150.
    HALL et al. v. MASSALLY.
    (764 SE2d 161)
   BARNES, Presiding Judge.

Curtis Hall, Irina Hall, and minor Scarlett Hall appeal the trial court’s grant of summary judgment to Rachel Massally in this suit for personal injuries resulting from an automobile collision. Because the record establishes the existence of genuine issues of material fact for a jury to determine, we reverse.

Shortly after Massally deposed Curtis and Irina Hall, the trial court granted the motion of the Halls’ attorney to withdraw from the case. Six months later, Massally filed transcripts of the Halls’ depositions with the trial court clerk, and three months after that Mas-sally moved for summary judgment, relying in part on the Halls’ depositions. In her motion, Massally argued that the Halls “failed to provide any admissible evidence that Defendant did anything wrong to cause the subject accident.”

Approximately a week after the Halls’ response to the motion was due, the Halls acting pro se asked the trial court by letter for permission to respond to the motion out of time, contending they had not received a copy of it. The trial court issued a rule nisi, directing the Halls to show cause why Massally’s motion for summary judgment should not be granted. On the day of the hearing, an attorney for the Halls filed an entry of appearance and a response to the motion, which included the affidavit of a witness. The witness said that after Massally passed him at about 90 mph, he saw smoke and dust “just down the road,” then saw Massally’s car “go over the median and skid into a parking lot” and saw the Halls’ car go over the curb into the grass.

Massally objected to the late-filed response and affidavit, and the trial court ruled that it would not consider the affidavit. Massally’s counsel argued that Massally had been driving in the right-hand turn lane and had the right-of-way when Mr. Hall drove into her lane and hit her, although the record contains no evidence from Massally in the form of an affidavit or deposition. The Halls’ counsel responded that she had initially been retained to represent the Halls for the limited purpose of attempting to negotiate a settlement, and that in the course of reviewing the court’s docket she discovered the unanswered motion for summary judgment. She recommended that the Halls ask the court for an extension of time to file a response, which they did, and the court then scheduled the motion hearing without ruling on their request.

As to the merits of the motion, the Halls argued that their deposition testimony was properly before the court and established the existence of questions of fact sufficient to withstand summary judgment. The trial court responded that the plaintiffs had presented “nothing for consideration by the Court.” The trial court further noted that in their complaint, the Halls alleged that the accident was a rear-end collision, but “all the evidence before the court is that it was a side-impact collision.” The court further commented that the depositions showed that Mr. Hall “moved into a lane that the defendant was in lawfully traveling.” Four days after the hearing, the trial court issued an order stating that “after considering the entire record, the Court finds that there exists no genuine issue as to any material fact and Defendant is entitled to judgment as a matter of law.”

1. The Halls contend that the trial court erred in granting summary judgment to Massally because, among other things, the evidence of record establishes the existence of genuine issues of material fact for a jury to determine. We agree.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Citation omitted.) Clo White Co. v. Lattimore, 263 Ga. App. 839 (590 SE2d 381) (2003). “Under Uniform Superior Court Rule 6.2, a party opposing a motion must file responsive material no later than 30 days after service of the motion. The failure of a nonmoving party to file responsive material, however, does not automatically entitle the moving party to judgment,” Neely v. Jones, 264 Ga. App. 795, 796 (592 SE2d 447) (2003), for “[tjhere is no such thing as a ‘default summary judgment.’ To affirm a grant of summary judgment, it must affirmatively appear from the record that no question of material fact exists and the moving party is entitled to judgment as a matter of law.” Crown Ford v. Crawford, 221 Ga. App. 881, 882 (473 SE2d 554) (1996).

In his deposition, Mr. Hall testified that before he moved into the right turn lane, he turned his body toward the back of the car, looked over his right shoulder, and saw that the right lane next to him was “completely open.” He could see one hundred to two hundred feet behind him and “there was nobody in the right lane.” He turned on his blinker and started moving over into that lane, but when his car had moved two to three feet into the lane, the impact occurred.

Mr. Hall also testified that the two vehicles locked together when they collided. According to him, Massally’s vehicle dragged the Halls’ car 20 to 30 feet across a median in the entrance and exit opening into the drug store parking lot where the Halls were headed to pick up something for their baby, Scarlett Hall, who was secured in the back seat. After the cars disengaged, Massally’s vehicle continued up the hill “at a high rate of speed still” for another 75 to 85 feet. Defense counsel asked Mrs. Hall, “So you don’t know how fast [Massally] was going?” Mrs. Hall responded:

I can assume how fast because we [were] driving approximately like fifty miles an hour and then when she could not stop her car and her car is heavy, supposed to be able to stop like right away, especially after you hit one car. So I assume you would be able to stop. But since her car fly all the way to the pharmacy,... I would say she was about ninety. She was double.

The Halls’ car spun around before finally stopping, and the baby was screaming and crying “like wild.” The passenger side door was inoperable, so Mrs. Hall climbed out on the driver’s side, retrieved Scarlett from the back, and rode with her to the hospital in an ambulance.

“By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted.” McGivern v. First Capital Income Properties, 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988). In this case, Mr. Hall’s testimony that he turned completely around and saw no one in the lane next to him for 200 feet back before he began to change lanes, Mrs. Hall’s testimony that Massally was going at least double the Halls’ speed, and both of the Halls’ testimony that Massally’s vehicle continued to travel another 75 to 80 feet after their car stopped is sufficient to create a jury question as to whether Massally caused the wreck by speeding.

Decided September 24, 2014.

Cherri L. Shelton, for appellants.

Worsham, Corsi, Scott & Knighten, Andrea E. Dobur, for appellee.

Accordingly, we reverse the trial court’s grant of summary judgment to Massally.

2. The Halls’ remaining enumerations of error are moot.

Judgment reversed.

Boggs and Branch, JJ., concur.


text:
    A14A1175.
    TREMBLAY v. THE STATE.
    (764 SE2d 163)
   BARNES, Presiding Judge.

A jury found Jahaziel Tremblay guilty of aggravated assault, and the trial court denied his motion for new trial. On appeal, Tremblay contends that the evidence was insufficient to support his conviction, the trial court erred by charging the jury that a defendant claiming justification must show that he did not act in a “spirit of revenge,” and his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Flemister v. State, 317 Ga. App. 749 (732 SE2d 810) (2012). So viewed, the evidence showed that on the night of July 26, 2011, a group of North Gwinnett High School students, including the victim, were at a party in the Wild Timber subdivision. Tremblay, who was older and no longer in high school, came to the party with some of his friends and got into a heated argument with one of the students. Tremblay and the student went outside as they continued their argument, and many other party goers, including the victim, followed them. The street where the party was taking place dead-ended into the parking lot for the subdivision’s clubhouse, and the group walked down the street in that direction as Tremblay and the student continued to argue. Near the parking lot, the student began punching Tremblay. Tremblay did not fight back, and after he was struck several times by the student, he got in his car and drove off.

Around midnight, Tremblay drove back to the subdivision with two friends and parked in the clubhouse parking lot. The victim, who was still hanging out with several other students, saw the car approach and walked down to the parking lot to see who had just arrived to join the party. As the victim approached the car, he realized that it was Tremblay and stopped. The victim, who has witnessed the prior altercation but had not participated in it, expected Tremblay to ask him to go find the student who had punched him. Instead, Tremblay walked up to the victim and struck him several times in the head with a hard object. The victim fell to the ground but then got up and ran into the woods as Tremblay began to chase him. Tremblay ultimately returned to his car with his two friends and drove off when a parent in the neighborhood came outside and shouted that she was calling the police and they needed to leave. The victim was taken to the hospital and received seven staples in the back of his head.

The next day, a police officer met with the victim, who identified Tremblay as his assailant and told the officer that he believed he had been struck with “something like a tire iron.” The officer accompanied the victim to the parking lot where the attack had occurred and found the victim’s hat, his broken cell phone, and a metal bar “all in the same area” of the woods. The officer noted that the metal bar was approximately 18-20 inches long with a 90 degree bend at the end, and at night could have easily been mistaken for a tire iron. The officer also noted that the metal bar had a tip on it that was consistent with the shape of the wound on the victim’s head.

Tremblay was arrested and indicted on one count of aggravated assault. At the ensuing jury trial, the victim and the police officer who interviewed him the day after the attack testified to the events as summarized above, and the State introduced into evidence the metal bar found in the woods after the attack.

Among other witnesses, the State also called one of Tremblay’s two friends who had returned with him to the clubhouse parking lot on the night of the attack. The friend testified that when he met up with Tremblay at his house that night after the student had punched him, Tremblay had been extremely angry and wanted to return to confront the student. According to the friend, when they subsequently returned to the subdivision and the victim approached them in the parking lot, Tremblay pulled the metal bar out of his car and struck the victim with it when the victim questioned why they were returning to the party. The friend further testified that the victim “might have said something smart” but had not been armed, had not attacked or otherwise been physically aggressive toward Tremblay, and, in fact, had only been wearing a bathing suit and a hat.

Tremblay elected not to testify in his own defense. He did call as a defense witness his other friend who had returned with him to the subdivision that night. The friend testified that he had not been “paying attention” and thus had not seen Tremblay hit the victim, but he had seen the victim fall to the ground after being hit. When asked if the victim had been “threatening or loud” when he approached them in the parking lot, the friend said that the victim had simply had an “attitude.”

After hearing all of the testimony, the jury found Tremblay guilty of the charged offense. Tremblay filed a motion for new trial, and then an amended motion after he was appointed new counsel. Following a hearing, the trial court denied Tremblay’s amended motion for new trial, resulting in this appeal.

1. Tremblay contends that there was insufficient evidence to convict him of aggravated assault. When evaluating the sufficiency of the evidence, “[w]e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). Applying this standard to the record in this case, we conclude that Tremblay’s challenge to the sufficiency of the evidence is without merit.

“A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Citations and punctuation omitted.) Myrick v. State, 325 Ga. App. 607, 608 (1) (754 SE2d 395) (2014). See OCGA § 16-5-21 (b) (2). The State may prove an assault by showing that the defendant “[a]ttempts to commit a violent injury to the person of another” or “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). The indictment in the present case alleged that Tremblay committed aggravated assault by hitting the victim in the head with “a piece of metal, which, when used offensively against another person is likely to result in serious bodily injury.”

The combined testimony of the victim, the police officer who interviewed him and found the metal bar in the woods, and the two friends who accompanied Tremblay to the parking lot, along with the introduction into evidence of the metal bar used in the attack, was more than sufficient to sustain Tremblay’s conviction for aggravated assault. And while Tremblay argues that the State failed to disprove that he was acting in self-defense, Georgia law is clear that “a person is not justified in using force in self-defense if he is the initial aggressor.” (Citation and punctuation omitted.) Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011). Because all of the testimony presented at trial pointed to Tremblay as the initial aggressor who attacked the unarmed victim, a rational jury was authorized to find beyond a reasonable doubt that the State disproved Tremblay’s self-defense claim and that he was guilty of aggravated assault as alleged in the indictment. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Tremblay further contends that the trial court committed reversible error by charging the jury that a defendant claiming justification must show that he did not act in a “spirit of revenge.” We are unpersuaded.

Because Tremblay did not object to the jury charge on justification, we review the charge only for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga. App. 257, 260 (2) (744 SE2d 429) (2013).

Reversal based on plain error is authorized if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

(Citation and punctuation omitted.) Booker, 322 Ga. App. at 260 (2). See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

Regardless of whether any of the other prongs were satisfied, Tremblay has failed to show plain error in this case because he cannot demonstrate that the alleged error in the jury charge likely affected the outcome of the proceedings. The evidence was overwhelming that Tremblay was the initial aggressor who attacked the unarmed victim with the metal bar, and thus that Tremblay did not act in self-defense and was guilty of aggravated assault. Given the overwhelming evidence of Tremblay’s guilt, there was no plain error in the jury charge. See McBurrows v. State, 325 Ga. App. 303, 314 (7) (750 SE2d 436) (2013).

Decided September 24, 2014.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

3. Lastly, Tremblay contends that his trial counsel rendered ineffective assistance by failing to object to the “spirit of revenge” language in the jury charge on justification. Notably, Tremblay was appointed new counsel after his conviction who filed an amended motion for new trial on his behalf, but his counsel did not raise any ineffective assistance claims in the amended motion or at the hearing on the motion.

Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.

(Citation and punctuation omitted.) Pye v. State, 274 Ga. 839, 840 (1) (561 SE2d 109) (2002). See also Jones v. State, 294 Ga. 501, 503 (2) (755 SE2d 131) (2014). Accordingly, Tremblay has waived his claim of ineffective assistance, and we therefore will not consider it on appeal.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Tremblay also argues that the evidence presented by the State failed to exclude every alternative, reasonable hypothesis of his innocence, but the reasonable hypothesis rule applies only when all of the evidence against the defendant was circumstantial. See Meeks v. State, 281 Ga. App. 334, 337 (636 SE2d 77) (2006). There was direct evidence of Tremblay’s guilt based on the eyewitness testimony of the victim and Tremblay’s two friends.

       In the recent case of Hodges v. State, 319 Ga. App. 657, 660 (3), n. 1 (738 SE2d 111) (2013), we questioned whether the suggested pattern jury instruction on justification and several of our cases indicating that an absence of revenge is an essential element of justification are still good law.


text:
    A14A1230.
    STYLES v. THE STATE.
    (764 SE2d 166)
   Phipps, Chief Judge.

In connection with a home invasion during which property was taken at gunpoint from four persons, Dominique Styles was tried by a jury, then convicted of burglary and four counts of armed robbery. In this appeal, he challenges the sufficiency of the evidence, claims he was entitled to a jury charge on robbery by intimidation as a lesser included offense of armed robbery, and contests the denial of his motion for new trial which asserted that his trial counsel had rendered ineffective assistance. We affirm.

1. Styles contends that the trial court erred by denying his motion for a directed verdict of acquittal and that his convictions are not supported by sufficient evidence. Pursuant to Jackson v. Virginia, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

In its case-in-chief, the state showed the following. The crimes occurred at the residence of two women and one of the women’s children. Their home had frequently been the site of card games. Styles had once participated in a game there. He returned on July 25, 2009, at about 10:00 p.m. The residents were at home, and their family members were visiting; collectively, the occupants numbered about 12.

When Styles knocked on the front door and announced his name, a brother of one of the residents recognized him, opened the door, and allowed Styles to enter. Styles stepped into the living room and asked the group sitting there whether they were playing cards that night; they answered no. Styles went back to the front door, peered outside, then walked back into the living room. About ten seconds later, a man wearing a mask rushed into the residence through that same door, which had been left ajar.

The masked man pointed a gun at each adult resident and family member, ordering to the effect: “Give me everything, cell phone, money and all.” The man took money from two of them. He took a cell phone from a third. From a fourth, the man took car keys, ordering her: “Take me out to the car, where the money at.” The man then forced that woman to her car, which he searched; finding no money, the man took a bank envelope.

Meanwhile, one of the family members, who had escaped while the gunman was still inside, ran to a neighbor’s residence and summoned police. While the gunman was outside searching the car, another family member inside the residence dialed police; and a third family member sneaked out a window and ran to a nearby apartment, where he asked residents to contact the police. Styles had initially begun “running behind” that family member; however, as another family member testified, “[Styles] could have kept going and got help, but he came back inside the house where the gunman was,” then went into a bedroom and began “plundering trying to steal [a] PlayStation.”

During the intervals when Styles and the gunman were both at the residence, the gunman never pointed his weapon at Styles and never ordered Styles to relinquish any property. And by the time the police arrived, neither Styles nor the gunman was still on the premises.

The gunman was later identified as Lamar Jones. Co-indicted on all counts with Styles, Jones entered a negotiated guilty plea, pursuant to which he agreed to testify for the state at Styles’s trial. In his trial testimony, Jones provided details about the planning and execution of the heist. Earlier on the day in question, Styles had called him and told him about a “lick” at a residence, which Styles described as a “gambling house.” Jones recounted that Styles had designed a plan: “[Styles was] going to go knock on the door. As he knock on the door and get the door open, I just come behind him, and he just play like, you know . . . like I just came by myself.” Jones testified that, after driving to the targeted residence, “We got out,... crept along side of the house. We went on around, he knocked on the door. Once he knocked I could hear him talking with somebody [,]... then they kind of exchanged a little bit more words.” Jones recalled, “I came around, and I went in the house.” Jones testified that he was wearing a mask, that he brandished a gun, and that he took money from two or three of the occupants. He testified that he also “escorted” one of the residents to her car, which he searched for money; he took a bank envelope, which he later discovered contained only receipts. And when he saw police approaching the area, he ran away.

On cross-examination of several of the state’s witnesses, Styles’s lawyer elicited testimony that during the incident, Styles had not held a gun, had not threatened anyone, and had not made any demand upon anyone.

Styles was the sole defense witness. He admitted that, prior to the night of the incident, he had been to the residence, where he had played cards and seen “[a] pretty good amount of money” change hands. He testified that when he knocked on the front door on the night in question, he was invited to come inside, and that after stepping inside, Jones came into the residence, waving a gun and demanding money.

Styles conceded that, after his initial entry into the living room, “[t]he door was never closed.” Styles, who was 21 years old at the time of the incident, testified that he had known Jones since they were children. Styles admitted that Jones never pointed the gun at him nor demanded from him any money. Styles denied, however, planning with Jones the commission of any offense and testified further that, while Jones was perpetrating the crimes, he and a resident’s family member sprinted to a nearby apartment and asked someone there to contact police.

In rebuttal, the state called as a witness that family member, who recounted that after he sneaked out the window, he saw Styles already outside. Although Styles had initially begun running with him, Styles “split off” and “went some else where” — Styles was not with him when he reached the apartment nearby and asked the residents to contact police.

The indictment charged Styles and Jones with the same 25 offenses. The jury found Styles guilty of burglary of the residence, guilty of the armed robberies of four persons, and not guilty of the remaining charges (including twelve counts of possession of a firearm during the commission of a felony). As explained more fully below, Styles’s challenges to the sufficiency of the evidence are without merit.

(a) Burglary. At the time of the underlying criminal incident, burglary was defined as follows: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” Styles argues that the state failed to prove the element “without authority,” citing evidence that when he knocked on the front door of the residence and announced his name, he was allowed to enter by a resident’s family member who was familiar with him. Styles relies upon Thompson v. State, wherein “[the Supreme Court of Georgia] categorically rejected] the position that the element of an unlawful entry may be established solely by proof that an accused had the intent to commit a theft or other felony within another’s premises.”

Styles’s argument disregards language in the indictment charging him and Jones, “individually and as parties concerned in the commission of a crime, with the offense of Burglary for that the said accused ... without authority and with the intent to commit theft, a felony, therein, did enter the dwelling house.” Styles further disregards that the trial court included, in its final charge to the jury, these instructions:

Every party to a crime may be charged with and convicted of the commission of the crime. A person is a party to the crime only if that person directly commits the crime, intentionally helps in the commission of the crime, intentionally advises, encourages, hires, counsels, or procures another to commit the crime, or intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of the crime either in fact or because of legal incapacity.

The evidence showed that Styles proposed to Jones that they commit the crimes underlying this case. Styles had previously been inside the house and determined it to be a gathering place for gambling with money. Pursuant to a plan he designed, Styles gained entry into the residence, then assisted Jones’s entry by returning to the door, peering outside where Jones was staged with gun and mask, then leaving that door ajar for Jones’s entry. Seconds later, Jones abruptly entered through that door, then took money and property from others by use of a gun. This evidence authorized the jury to find beyond a reasonable doubt, under the theory of party to a crime, every essential element of the crime of burglary as to Styles.

Furthermore, Thompson is inapposite, and thus provides no basis to disturb Styles’s burglary conviction. Similar to the instant case, one of the cohorts in Thompson entered the home in question with the resident’s permission. But unlike here, there was no competent evidence in Thompson that any cohort made an unauthorized entry into the home; more specifically, there was no competent evidence in Thompson that any one cohort gained his unauthorized entry by the aid of another.

(b) Armed Robbery. OCGA § 16-8-41 (a) provides:

A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. . . .

The indictment charged Styles and Jones, “individually and as parties concerned in the commission of a crime, with the offense of Armed Robbery for that the said accused ... did unlawfully take ... by the use of a handgun”: (i) money from one person; (ii) money from a second person; (iii) a cell phone from a third person; and (iv) keys and an envelope containing receipts from a fourth person.

The four armed robbery victims named in the indictment testified that, during the criminal episode, their respective property was taken by the masked gunman (Jones). Jones admitted taking their property at gunpoint, elaborating that the armed robberies were executed pursuant to a plan orchestrated and aided by Styles. Indeed, Jones never pointed the weapon at Styles, nor demanded Styles’s property. And although Styles had successfully fled the property, he circled back to the residence — while Jones was still there — and attempted to steal electronic equipment. Before the police arrived, however, Styles (and Jones) had vanished. The state adduced sufficient evidence for the jury to find Styles guilty, under the theory of party to a crime, of four counts of armed robbery.

Challenging the sufficiency of the evidence, Styles cites his testimony that he had played no role in planning the crimes, as well as testimony that he had held no gun, had made no threat, and had demanded no property from anyone. But such testimony supplies no basis for disturbing any of the armed robbery convictions.

The jury, not this court, resolves conflicts in the testimony and weighs the evidence. And decisions regarding credibility are uniquely the province of the jury, which was not required to believe [Styles’s] testimony, nor to disbelieve that of [Jones]. Where, as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdicts will be upheld.

2. Styles contends that the trial court erred by failing to instruct the jury on the offense of robbery by intimidation as a lesser included offense of armed robbery. Styles’s trial lawyer did not request an instruction on robbery by intimidation, nor did the lawyer

object to the court’s failure to include such [an instruction] before the jury retired to deliberate. Accordingly, pursuant to [the] recent decision in State v. Kelly,[ ] andOCGA § 17-8-58 (b), we review this enumeration of error only to determine whether the court’s failure to include a specific instruction on [robbery by intimation] constitutes plain error.

To demonstrate plain error under the four-pronged test adopted in Kelly, Styles must show that “[the failure to give] the instruction was erroneous, the error was obvious, [the lack of] the instruction likely affected the outcome of the proceedings, and the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.”

The complete rule with regard to giving a ... charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

(a) For each of the four counts of armed robbery, the state presented evidence that established all the elements of the crime. Styles denied committing any offense, and in support of his defense, he testified that he played no role in any robbery and adduced testimony that he had neither held a gun nor demanded anyone’s property. The evidence relied upon by Styles, however, does not show robbery by intimidation; indeed, “[n]o evidence was presented that [a] robbery was committed without the use of a gun.” “Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” Therefore, the trial court’s “failure to charge on robbery by intimidation was not error because the evidence did not demand a charge on that offense.” And without the requisite showing of trial court error, Styles cannot satisfy the four-prong test for plain error adopted in Kelly

(b) Styles argues further that the jury’s return of “not guilty” verdicts on all 12 counts of possession of a firearm during the commission of a felony illustrates that, had the jury been instructed on robbery by intimidation, it would have convicted him of that lesser included offense, rather than of armed robbery.

This argument does not establish plain error under Kelly Furthermore, “[Styles’s] reliance on the not guilty verdict[s] ... is misplaced, as this [c]ourt will not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity.”

3. Styles contends that the trial court erred by denying his motion for new trial, maintaining that his trial counsel rendered ineffective assistance.

In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. Upon appellate review of that claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Styles claims that his trial lawyer performed deficiently by failing to request a jury instruction on robbery by intimidation as a lesser included offense of the armed robbery counts. Again citing the not guilty verdicts on the firearm possession charges, Styles asserts that the requisite prejudice was demonstrated.

Styles called his trial lawyer to the stand at the hearing on the motion for new trial, but did not ask the lawyer why no such instruction had been requested. We thus presume that his lawyer elected not to request the instruction as a matter of trial strategy. As the record reflects, the defense strategy pursued at trial was to show that Styles had nothing to do with Jones’s criminal conduct — not that Styles had participated in robbery, but without the use of a gun. In employing this “all or nothing” strategy, Styles testified that he was at the residence merely as a guest and that Jones alone had perpetrated the crimes; Styles sought to corroborate his version of events by eliciting testimony from several state witnesses that he had not participated in any of Jones’s acts.

Furthermore, Styles’s trial lawyer testified at the motion for new trial hearing that before trial, he had discussed with Styles the potential defenses. Although in hindsight, Styles may question whether the chosen defense strategy backfired, that does not render the strategy unreasonable. Given the foregoing, we conclude that Styles failed to carry his burden of showing that pursuing the “all or nothing” strategy was unreasonable; thus, no deficient performance was established.

(b) Styles charges his trial counsel with deficient performance for failing to call as a trial witness an individual who had knowledge of what he claims were material facts. Styles called this individual at the motion for new trial hearing, and the following transpired:

Q: Are you aware of the events that took place on July 25, 2009, dealing with an armed robbery here in [this] County?
A: Yes, sir.
Q: . . . I’m going to ask you, are you aware or did you have knowledge of anything regarding this incident prior to it taking place?
A: No. On that day I was in the Hill Street, and me, [Jones] and another guy by the name of Mike and two of my cousins and I, and they was talking about going to [the residence in question]. He left us earlier and went, and he came back and said it was a good bit of peoples there, and so I reckon he waited until dark, so the next day I found out what had happened.
Q: And was this the home involved in the robbery?
A: Yes, sir.
Q: Was [Styles] involved in those discussions?
A: He wasn’t on the scene.
Q: He was not even there?
A: He wasn’t there.
Q: This was prior to the robbery taking place; is that correct?
A: Yes, it happened later that night.

That testimony, as Styles’s post-conviction lawyer argued at the hearing, would have impeached Jones’s testimony that committing the crimes had been Styles’s idea.

But at that hearing, Styles’s trial lawyer testified that he had no recollection of that individual and that Styles had not discussed with him any such potential witness prior to trial. In its order, the trial court expressly found the lawyer’s testimony credible. Although Styles testified at the hearing that he had told his lawyer before trial about this potential trial witness, “[t]he trial court was authorized to believe counsel’s testimony over his.” Giving deference to the trial court’s finding, we conclude that Styles’s trial “counsel cannot possibly have performed deficiently by having failed to present testimony of which [Styles] had never made him aware.”

(c) Styles complains that his trial lawyer neither retrieved the recordings of the 911 calls, nor “investigate [d] into the person or persons who called 911 from the nearby apartments.” But at the motion for new trial hearing, Styles presented no evidence of either a 911 recording or how any person involved in a 911 call could have aided his defense. His speculation as to what might have been revealed falls short of establishing prejudice.

Decided September 24, 2014.

Byron D. Watson, for appellant.

J. David Miller, District Attorney, BradfieldM. Shealy, Jessica W. Clark, Assistant District Attorneys, for appellee.

We find no merit in Styles’s contention that the ineffectiveness of his trial counsel entitles him to a new trial.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

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

       Id. at 319 (III) (B) (emphasis in original); see Shelton v. State, 279 Ga. 161, 162 (3) (611 SE2d 11) (2005) (explaining that the standard of review enunciated in Jackson v. Virginia, supra, applies whether reviewing the denial of a motion for a directed verdict of acquittal or whether determining the sufficiency of the evidence to support a conviction).

       Jones explained at trial that “lick” was street slang for robbery.

       OCGA § 16-7-1 (a) (2009). OCGA § 16-7-1 was amended effective “July 1,2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense.” Ga. L. 2012, pp. 899, 949, §§ 3-1, 9-1. See Gorman v. State, 318 Ga. App. 535 (1), n. 2 (734 SE2d 263) (2012).

       271 Ga. 105 (519 SE2d 434) (1999).

       Id. at 106 (1). Accord Bell v. State, 287 Ga. 670, 673 (1) (c) (697 SE2d 793) (2010) (“Even assuming that the evidence at trial showed that [the defendant] intended to commit a theft when he first entered [the] residence, there was no evidence that [he] entered the home ‘without authority.’ ”). Cf. State v. Newton, 294 Ga. 767, 772 (755 SE2d 786) (2014) (determining that evidence was sufficient to show that entry of house was “without authority,” where the defendant gained consent to enter home by giving fictitious name and fake driver’s license).

       See OCGA § 16-2-20 (concerning “[w]hen a person is a party to a crime”).

       See Cargill v. State, 256 Ga. 252, 253 (1) (347 SE2d 559) (1986) (“[A]s parties to a crime, participants may be convicted of a crime even though they are not the actual perpetrator.”) (citation omitted), overruled on other grounds in Manzano v. State, 282 Ga. 557 (651 SE2d 661) (2007); Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003) (affirming defendant’s conviction as a party to the crime of burglary because defendant drove the perpetrator to the premises, served as the getaway driver, and sped away from the scene after the burglary was committed).

        Thompson, supra at 107-109 (2) (reversing burglary conviction because the state failed to prove an entry that was “without authority,” where the defendant was one of three individuals who conspired to enter residence and steal property therefrom; finding that one of defendant’s cohorts entered with permission, that there was no competent evidence that defendant’s second cohort entered the residence, and that the defendant “approached the house” but did not enter, as there was no evidence that defendant “directly” committed burglary). Cf. Bell, supra at 672-673 (1) (c) (reversing burglary conviction for lack of evidence of an entry “without authority,” where there was no indication that defendant forced his way into residence or that he was denied permission to enter and there was reason to believe that resident allowed defendant to enter and where “parties to a crime” was not a theory pursued by the state).

       See Cargill, supra; Broyard v. State, 325 Ga. App. 794, 797-798 (1) (b) (755 SE2d 36) (2014) (determining that evidence was sufficient to support conviction as a party to the crime of armed robbery, where the jury could infer the defendant’s participation in the crime from his conduct before, during and after the crime).

        Buford v. State, 309 Ga. App. 368-369 (710 SE2d 582) (2011) (footnotes omitted).

       OCGA § 16-8-41 (a) provides: “The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.”

       290 Ga. 29 (718 SE2d 232) (2011).

        Allen v. State, 290 Ga. 743, 744-745 (3) (723 SE2d 684) (2012) (footnote omitted).

       Supra at 33 (2) (a).

        Murray v. State, 295 Ga. 289, 294 (3) (759 SE2d 525) (2014) (citation and punctuation omitted); see Kelly, supra (enumerating the four prongs of the plain error standard).

        Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994) (citation and emphasis omitted).

       See Division 1 (b), supra.

       Cf. Edwards, supra at 132-133 (concluding that the appellant, charged with armed robbery at a residence, was entitled to a jury charge on lesser included offense of theft by taking, where appellant’s police statement recounted that he had broken into the residence to steal drugs and money, but that the guns discovered at the residence by police were not his and were already at the residence when he arrived).

        Hopkins v. State, 227 Ga. App. 567, 568 (1) (489 SE2d 368) (1997), overruled on other grounds, Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999).

        Mason v. State, 267 Ga. 314, 315 (3) (477 SE2d 568) (1996) (citation and punctuation omitted); see Clark v. State, 279 Ga. 243, 247 (7) (611 SE2d 38) (2005) (“Where, as here, the evidence in the record shows completion only of the greater offense, it is unnecessary for the trial court to charge on the lesser offense.”) (citation and punctuation omitted); Hopkins, supra at 567-568 (1) (concluding that, because the evidence proved the defendant guilty as a party to the crime of armed robbery and there was no evidence that the robbery was committed without the use of a gun, the trial court did not err in failing to instruct the jury on the lesser included offense of robbery).

        Holcomb v. State, 230 Ga. 525, 527 (198 SE2d 179) (1973) (emphasis in original); see Clark, supra; Hopkins, supra.

       Supra.

       See text accompanied by footnote 14, supra.

        Allaben v. State, 294 Ga. 315, 320 (2) (a) (3) (751 SE2d 802) (2013) (citations and punctuation omitted); see Dennis v. State, 263 Ga. 257, 259 (3) (430 SE2d 742) (1993) (rejecting appellant’s argument that ‘because the jury found him not guilty of the charge of possession of a firearm during the commission of a felony which followed the first armed robbery charge, and guilty of the armed robbery charge, the verdicts are inconsistent and therefore erroneous”; reiterating, “Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.”).

        Colzie v. State, 289 Ga. 120, 124 (3) (710 SE2d 115) (2011) (citations and punctuation omitted); see Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        State v. Worsley, 293 Ga. 315, 325 (4), n. 10 (745 SE2d 617) (2013) (citing Williams v. Head, 185 F3d 1223, 1228 (11th Cir. 1999), for the proposition that “where the record is incomplete or unclear about [trial counsel’s] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment”); Mathis v. State, 293 Ga. 837, 840 (3) (750 SE2d 308) (2013) (“In the absence of evidence to the contrary, counsel’s decisions are presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim.”) (citation and punctuation omitted).

       See Jimmerson v. State, 289 Ga. 364, 368-369 (2) (a), (e) (711 SE2d 660) (2011).

       See id.; Davis v. State, 287 Ga. App. 786, 788-789 (2) (653 SE2d 104) (2007) (“[The] decision not to request a jury charge on a lesser included offense in order to pursue an ‘all-or-nothing’ defense is a matter of trial strategy,” and reasonable trial strategy, whether wise or unwise, generally does not amount to ineffective assistance of counsel.); see further Strickland, supra at 690 (III) (A) (espousing that trial counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment”); Mathis, supra (reiterating that to demonstrate deficient performance, “appellant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional assistance”).

        McDaniel v. State, 279 Ga. 801, 802 (2) (a) (621 SE2d 424) (2005) (citation omitted).

        Lewis v. State, 294 Ga. 526, 529 (755 SE2d 156) (2014) (citation omitted).

       See Crowder v. State, 294 Ga. 167, 169-170 (3) (751 SE2d 334) (2013) (“At the motion for new trial hearing, either the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness’s testimony.... Without making any such evidentiary showing at the motion for new trial hearing, appellant cannot establish a reasonable probability that the outcome of his trial would have been different.”) (citations omitted)); Brown v. State, 293 Ga. 518, 519 (2) (748 SE2d 388) (2013) (“Speculation that [an individual] could have given testimony favorable to the defense does not establish prejudice.”); Walker v. State, 288 Ga. 174, 179-180 (3) (b) (702 SE2d 415) (2010) (holding that the defendant did not prove prejudice when he “presented no evidence at the motion for new trial hearing to support his bald assertion that there was a reasonable probability that the outcome of the proceeding would have been different”); McIlwain v. State, 287 Ga. 115, 118 (5) (694 SE2d 657) (2010) (concluding that because potential trial witnesses did not testify at motion for new trial hearing, appellant failed to show that their testimony would have been relevant and favorable, and thus appellant did not demonstrate that counsel’s performance was constitutionally flawed); McDaniel, supra at 802-803 (2) (c), (d).