text:
    A13A0661.
    THE STATE v. CHAPMAN.
    (744 SE2d 77)
   BARNES, Presiding Judge.

After a jury found Laquaine Darryle Chapman competent to stand trial and another jury found Chapman guilty of two counts of aggravated child molestation and one count of child molestation, the trial court, acting sua sponte, declared a mistrial in the trial of Chapman’s guilt or innocence and ordered a new trial on the issue of his competency. On appeal, the State contends that the mistrial order is void because it was entered after the jury returned its verdict and that the trial court abused its discretion in ordering a new trial on the issue of Chapman’s competency. For reasons that follow, we conclude that the trial court, in substance, granted a new trial as to the issue of Chapman’s guilt or innocence, and that it did not abuse its discretion in doing so, thereby mooting the issue of whether the trial court erred in granting a new trial on the issue of Chapman’s competency to stand trial. Accordingly, we affirm.

The record shows that Chapman was indicted on two counts of aggravated child molestation and one count of child molestation. Chapman entered a special plea of incompetency to stand trial, and he demanded therein that the issue of his competency be resolved by a jury as set forth in OCGA § 17-7-130 (b) (2). After a jury found Chapman to be competent, another jury found him guilty on all counts in the criminal trial. At the conclusion of the criminal trial, the trial court stated, among other things, that “[j]ustice was not done in this courtroom this week,” and that the “process by which we reached the decision today ... is hanging in my craw.” Approximately two weeks later, the trial court, acting sua sponte, entered contemporaneous orders granting a new trial on the issue of Chapman’s competency to stand trial and declaring a mistrial on the criminal charges.

The State initially claims that the trial court’s declaration of a mistrial after the return of the jury’s verdict was without authority and void. We agree with the State that it was too late for the trial court to declare a mistrial after the verdict. See State v. Sumlin, 281 Ga. 183, 184 (1) (637 SE2d 36) (2006) (finding that trial court’s grant of motion for mistrial two months after the jury entered its verdict was void, noting the rule that “[o]nce the jury returns its verdict, the trial has ended and the time for granting a mistrial has passed”); State v. Jorgensen, 181 Ga. App. 502, 503 (353 SE2d 9) (1987) (finding that a trial court cannot grant a mistrial after verdict). However, the trial court found that it committed error in admitting a physician’s testimony that Chapman had sought to exclude through a motion in limine and, therefore, “the resulting jury verdict must be set aside” and “[defendant is entitled to a new trial.” Notwithstanding nomenclature, the trial court’s order was in substance the sua sponte grant of a new trial, and we will therefore treat it as such. “Pleadings, motions, and orders are construed according to their substance and function and not merely by nomenclature.” (Punctuation and footnote omitted.) McCullers v. Harrell, 298 Ga. App. 798, 800 (2) (681 SE2d 237) (2009). See OCGA § 5-5-40 (h) (authorizing sua sponte grant of new trial); State v. Freeman, 272 Ga. 813, 815 (1) (537 SE2d 92) (2000) (looking to the substance of the order, rather than nomenclature, to discern its effect).

The State further contends that if we construe the trial court’s order as a grant of a new trial, the trial court’s order must nevertheless be vacated because the court abused its discretion in ordering a new trial. Generally, “[t]he grant or denial of a motion for new trial is a matter within the sound discretion of the trial court [.]” Taylor v. State, 259 Ga. App. 457, 460 (2) (576 SE2d 916) (2003). Cf. O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009) (if a grant of new trial is on special ground involving questions of law, the questions of law are reviewed de novo). The reasons cited by the trial court for requiring a new trial do not go to the general grounds, but to the erroneous admission of evidence. However, the trial court’s rulings on the admission or exclusion of evidence are within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. See, e.g., Holmes v. State, 275 Ga. 853, 855 (4) (572 SE2d 569) (2002).

In its written order, the trial court found that Chapman was charged for conduct allegedly occurring in September and October 2011. In November 2011, the seven-year-old victim complained to her grandmother of a burning sensation during urination and, in connection with this complaint, she indicated that Chapman had sexually abused her. The victim was treated with medication for her urinary tract infection.

In May 2012, the victim was again diagnosed with a urinary tract infection and given an antibiotic. She was then treated on May 22, 2012 by Dr. Duke, an OB/GYN physician, for an abscess on the child’s tube or ovary. Dr. Duke testified at Chapman’s trial. According to Dr. Duke, the cause of the victim’s abscess was pelvic inflammatory disease, and pelvic inflammatory disease is almost always caused by prior exposure to a sexually transmitted disease. Dr. Duke performed surgery on the victim and numerous color photographs taken during the surgery were admitted into evidence and shown to the jury.

The trial court noted that the victim’s grandmother testified that during a pelvic examination in November 2011 the victim’s hymen was intact while Dr. Duke testified that in May 2012 her pelvic examination of the victim showed that the victim’s hymen was not intact. The trial court also noted that Chapman was arrested in November 2011 and remained in custody through the date of trial, and that there was no evidence that Chapman had ever had a sexually transmitted disease. The trial court found Dr. Duke’s testimony to be “highly indicative that the victim was sexually abused by someone other than the defendant after his arrest.”

Although Chapman sought to exclude Dr. Duke’s testimony, the trial court allowed the physician’s testimony, predicated on the State’s representation that the victim would testify that she had never been sexually molested by anyone else. The victim testified at trial, but she was not asked, and she did not testify about, whether she had been sexually molested by anyone other than Chapman. Accordingly, the trial court concluded that it erred in admitting Dr. Duke’s testimony, which was “highly prejudicial to defendant without a sufficient nexus to his alleged conduct,” and that the resulting jury verdict must be set aside.

The State contends that the trial court’s findings are directly contrary to the evidence presented at trial. The State concedes that during her trial testimony the victim did not testify that she had not been molested by any person other than Chapman, but it asserts that the child gave such testimony in a recorded interview following her outcry, and that this interview was admitted into evidence and played for the jury. In that respect, the evidence shows that after the victim had spoken to acts of molestation committed upon her by Chapman, the interviewer asked the victim “has anyone else ever done anything like this to you before,” and the victim answered by shaking her head, “no.” But the concern of the trial court, as expressly stated in the order, was that Dr. Duke’s testimony indicated that the victim had been molested by someone other than Chapman after he had been confined in jail. The State does not show that the victim’s statement following her outcry in November 2011 shows anything about what happened to the victim between the time of Chapman’s arrest and her illness in May 2012.

The State further contends that Dr. Duke’s testimony was probative, and that the trial court erred in finding otherwise. See Neal v. State, 210 Ga. App. 522, 525 (3) (436 SE2d 574) (1993) (evidence that victim had a sexually transmitted disease was evidence that she had been molested). In this context, “[r] elevancy is determined by answering the following question: Does the evidence offered render the desired inference more probable than it would be without the evidence?” (Citation and punctuation omitted.) Smith v. State, 255 Ga. 685, 686 (2) (341 SE2d 451) (1986). Dr. Duke’s testimony indicated that the victim’s condition would typically have been caused by the introduction of infected seminal fluid via penetration, although Chapman was not charged with conduct that involved such penetration. As noted above, Chapman had no access to the victim following November 2011, was not shown to have had a sexually transmitted disease, and there was lack of testimony establishing that the victim had not been molested by anyone else. The trial court also found pertinent that while the victim’s hymen had been found intact in an examination following her outcry in November 2011, Dr. Duke’s testimony showed that the victim’s hymen was not intact in May 2012. Thus, while Dr. Duke’s testimony was compelling evidence that the victim had been sexually abused, it is much less probative of the question of whether Chapman was the one who had molested the victim.

The “law favors the admission of relevant evidence, no matter how slight its probative value,” unless the potential for prejudice substantially outweighs its probative value. (Punctuation and footnote omitted.) Mims v. State, 314 Ga. App. 170, 173-174 (2) (723 SE2d 486) (2012). Here, although it cannot be said that Dr. Duke’s testimony was irrelevant, the trial court could conclude that the testimony’s probative value was outweighed by its tendency to “unduly arouse the jury’s emotions of prejudice, hostility or sympathy.” (Citation and punctuation omitted.) Smith, 255 Ga. at 686 (2). And in weighing the probative value of evidence against the potential for such undue prejudice, it is for the trial court to exercise its discretion in determining admissibility. See Hinton v. State, 280 Ga. 811, 816 (4) (631 SE2d 365) (2006). We cannot say that the trial court abused its discretion in finding that Dr. Duke’s testimony was “highly prejudicial to defendant without a sufficient nexus to his alleged conduct,” or that it erred in granting Chapman a new trial on the ground that such material and prejudicial evidence was improperly admitted. See OCGA § 5-5-22; Crowder v. State, 305 Ga. App. 647, 650 (2) (700 SE2d 642) (2010) (trial court could weigh probative value of evidence against its prejudicial value in its order on motion for new trial).

Decided May 30, 2013.

Ashley Wright, District Attorney, Charles R. Sheppard, Madonna M. Little, Assistant District Attorneys, for appellant.

Holly G. Chapman, for appellee.

The State also contends that the trial court erred in granting Chapman a new trial on the issue of his competency to stand trial. Pretermitting whether this order is appealable by the State, we conclude that the issue of Chapman’s competency to stand trial at the criminal proceedings in August 2012 is moot, and he is entitled to again raise the issue of his competency upon retrial of the criminal charges. See, e.g., Baker, 250 Ga. at 193 (2) (finding that, should verdict of guilty be set aside, “the appellant may again raise the issue of competency by special plea”). Accordingly, we need not address the State’s claims of error as they pertain to the trial court’s grant of a new trial on the issue of Chapman’s competency.

Judgment affirmed.

Miller and Ray, JJ., concur.

       In its order the trial court also references the fact that it granted Chapman a new trial on the issue of his competency to stand trial, although this, standing alone, would not be a proper reason to grant a new criminal trial on the question of guilt or innocence. Rather, Chapman would simply be entitled to a new trial on competency and if found competent, his convictions would stand. See Baker v. State, 250 Ga. 187, 193 (1) (297 SE2d 9) (1982); Jones v. State, 189 Ga. App. 232, 234 (1) (375 SE2d 648) (1988) (where defendant was entitled to a new trial on competency, “[i]f he is found competent, the convictions will stand”).

       The appellate record includes only portions of the trial transcript and exhibits, specifically the trial court’s statements following the return of the verdict, the testimony of Dr. Angela Duke, and a DVD of the forensic interview of the victim following her outcry. The State does not show that the trial court’s recitation of the evidence is incorrect. See generally Malcolm v. State, 263 Ga. 369, 371 (3) (434 SE2d 479) (1993) (burden is on the party asserting error to show error by the record).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A13A0808, A13A0809.
    HARRIS v. THE STATE (two cases).
    (744 SE2d 82)
   Boggs, Judge.

Rodney Harris was charged in one indictment with armed robbery, aggravated assault, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, and carrying a concealed weapon, arising out of a May 28, 2009 incident. In a second indictment, Harris was charged with armed robbery, aggravated assault, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, carrying a concealed weapon, obstruction of an officer, and possession of less than an ounce of marijuana, arising out of a June 3, 2009 incident. At the end of a trial on both indictments, a jury found Harris guilty on all counts. Following the denial of his motion for new trial and amendments thereto, Harris now appeals, contending that the trial court erred in limiting his counsel’s cross-examination of a witness and in sentencing him as a recidivist. He also asserts that he was denied the effective assistance of counsel. Having reviewed these claims, we find no error and affirm.

Construed in favor of the verdict, the evidence reveals that on May 28, 2009, two armed men entered a BP convenience store, pointed their weapons at the clerk and ordered him to give them the money from the cash register. After the clerk complied, the two men “ran out the door.” Two days after the robbery, an investigator presented the clerk with a photographic lineup of six individuals. The clerk identified Harris as the robber who “cuss[ed]” him and took the money.

On June 3, 2009, two armed men wearing black or gray “hoodie” sweatshirts entered a Citgo convenience store, pointed guns at the clerks, and ordered one of them to “open the register and give them the money.” A woman waiting outside for her husband saw the men, one carrying a gun, come out of the convenience store, and observed them get into a dark-colored SUV. The woman followed the SUV as she called police.

Police responded to the scene and executed a stop of the SUV. Harris, the front seat passenger, and another occupant of the vehicle fled. The driver was taken into custody, and after a foot chase, Harris was apprehended. The third occupant was not found. Harris was wearing a cap and had a considerable amount of cash on his person. In the vehicle, officers found two firearms under the front passenger seat and under the rear portion of the driver’s seat, a gray “hoodie” sweatshirt in the rear seat, a blue cap on the floorboard of the back seat, and a letter addressed to Harris. A small bag of marijuana was found down an embankment in the area where Harris fled. A video recording of the robbery was admitted into evidence. It depicts two armed men, one wearing a light gray sweatshirt and a tan cap, and another wearing a dark gray sweatshirt and a blue cap.

1. Harris contends that the trial court erred in “prohibiting defense counsel from fully cross-examining [a] state witness regarding photo lineup procedures.” Attached to the photographic lineup was a second page showing the dates of birth of those depicted. During counsel’s questioning of the investigator concerning the birth dates, the trial court ruled sua sponte that it would not allow the line of questioning because “the date of birth [ ] read out is not truly accurate, because you don’t know when the picture was taken in that person’s life.” Harris argues that his right to a fair trial was prejudiced because counsel was not allowed to confirm with the investigator that he was the oldest, tallest and heaviest person among the six photographs in order to show that the lineup “could lead to tainting the victim’s selection of a suspect.” The record, however, shows that the trial court ruled only that counsel could not ask the witness to state the date of birth for each person in the lineup.

Although the Sixth Amendment right to confrontation secures the right of cross-examination, the right of cross-examination is not an absolute right that mandates unlimited questioning by the defense. To the contrary, trial courts retain wide latitude to impose reasonable limits on cross-examination The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion.

(Citations and punctuation omitted.) Nicely v. State, 291 Ga. 788, 796 (4) (733 SE2d 715) (2012). Here, counsel was not prohibited from making any argument concerning the height and weight of those depicted in the lineup, and we cannot say the trial court abused its discretion in not allowing testimony concerning the birth dates on the ground it could confuse the jury because there was no indication of the ages of those in the lineup at the time the photographs were taken. See id.

2. Harris argues that the trial court erred in sentencing him as a recidivist. The record reveals that the trial court considered Harris’ 1999 conviction for armed robbery, and on the armed robbery counts here sentenced him “to life in prison without parole under [OCGA §] 17-10-7 (b) (2).” That Code section provides in part: “Any person who has been convicted of a serious violent felony ... and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole.” Armed robbery is listed as a “serious violent felony.” OCGA § 17-10-6.1 (a) (2).

Harris argues that the State “used up” the prior 1999 armed robbery conviction when it used that conviction as the basis for the charges of possession of a firearm by a convicted felon, and could not thereafter also use the prior conviction for recidivist sentencing. In support of his argument, Harris cites this court’s decision in Arkwright v. State, 275 Ga. App. 375 (620 SE2d 618) (2005). But Arkwright is inapplicable because it involves the application of OCGA § 17-10-7 (a), rather than subsection (b) (2) at issue here. Id. at 376-378. Our court held in King v. State, 169 Ga. App. 444 (313 SE2d 144) (1984), that the State cannot use “the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under the repeat offender statute.” Id. The Supreme Court of Georgia recently explained the rationale for this holding: “the application of OCGA § 17-10-7 (a)[] eviscerates the sentencing range of one to five years set forth in OCGA § 16-11-131 [(possession of a firearm by a convicted felon)] because the trial court is forced to impose a five-year sentence.” State v. Slaughter, 289 Ga. 344, 346 (711 SE2d 651) (2011). In other words, the sentencing range of one to five years is eliminated by the requirement of OCGA § 17-10-7 (a) that a defendant “shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense.” (Emphasis supplied.) Therefore, a prior felony conviction cannot be used by the prosecution to convict for possession of a firearm by a convicted felon and to enhance a sentence for that crime under OCGA § 17-10-7 (a). Id.

Contrary to Harris’ argument that the prior armed robbery conviction was “used up,” this court recently held in Washington v. State, 311 Ga. App. 518 (716 SE2d 576) (2011):

The rule set out in King is not founded on the idea that the defendant’s possession of a firearm is “used up” by its consideration under one statute and therefore not available under the other. Rather, the reason for this narrow rule is that to hold otherwise would eviscerate the sentencing range prescribed by the legislature for possession of a firearm by a convicted felon.

Id. at 519.

Here, the trial court sentenced Harris pursuant to OCGA § 17-10-7 (b) (2) which allows for sentence enhancement based upon a second conviction for a serious violent felony following a prior conviction for a serious violent felony. The court sentenced Harris as a recidivist for his convictions for armed robbery based upon his prior conviction for armed robbery. The application of OCGA § 17-10-7 (b) (2) therefore could not eviscerate the sentencing range for Harris’ conviction for possession of a firearm by a convicted felon, because subsection (b) (2) applies only to enhance the sentence for a subsequent conviction for a serious violent felony, and possession of a firearm by a convicted felon is not a “serious violent felony” as defined in OCGA § 17-10-6.1.

Harris also relies on Wyche v. State, 291 Ga. App. 165 (661 SE2d 226) (2008). In Wyche, the defendant was convicted of armed robbery, kidnapping, and possession of a firearm by a convicted felon. Id. Wyche complained, as Harris does here, that the State “used up” his prior felony conviction to prove the charge of possession of a firearm by a convicted felon. Id. at 167 (3). In support of the prior conviction, the State relied upon a nolo contendere plea to a charge of robbery with a deadly weapon. Id. And, as in this case, the trial court sentenced Wyche to life without parole on the armed robbery count pursuant to OCGA § 17-10-7 (b) (2). In reversing Wyche’s conviction for possession of a firearm by a convicted felon, our court, citing King, held that a prior conviction cannot be used to support both Wyche’s recidivist sentencing and his conviction for possession of a firearm by a convicted felon, and that moreover, a nolo contendere plea could not serve as proof of a prior conviction.

Our conclusion in Wyche was incorrect. As explained in Slaughter and Washington, the rationale for the King holding is not that the prior conviction was “used up” to prove the charge of possession of a firearm by a convicted felon and therefore cannot be used again for recidivist sentencing generally. Rather, the rationale is that a prior conviction used to prove possession of a firearm by a convicted felon cannot also be used to enhance the sentence for possession of a firearm by a convicted felon under OCGA § 17-10-7 (a), because to do so would eviscerate the sentencing range prescribed for that crime. The narrow holding in King simply does not apply to the separate provision of OCGA § 17-10-7 (b) (2). And we therefore disapprove of Wyche to the extent it holds to the contrary.

3. In three enumerations, Harris contends that he received ineffective assistance of counsel. He argues that counsel was ineffective in failing to object to the court’s “limitation of her cross-examination” of the investigator concerning the photographic lineup, in failing to object to the admission of prior felony convictions for recidivist sentencing purposes, and in failing to object to the photographic lineup before and during trial.

To prevail on a claim of ineffective assistance, [Harris] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To show that the performance of his lawyer was deficient, [Harris] must prove that [he] performed [his] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms... . And to show that he was prejudiced by the performance of his lawyer, [Harris] must prove a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Areasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, [supra,] 466 U. S. at 694 (III) (B). . . . This burden, though not impossible to carry, is a heavy one.

(Citations and punctuation omitted.) Arnold v. State, 292 Ga. 268, 269-270 (2) (737 SE2d 98) (2013). “[A]n insufficient showing on either [Strickland] prong relieves the reviewing court of the need to address the other prong.” (Citation and punctuation omitted.) Allen v. State, 286 Ga. 392, 398 (5) (687 SE2d 799) (2010).

(a) As we have held in Division 1 that the trial court did not abuse its discretion in limiting counsel’s cross-examination concerning the birth dates of those depicted in the lineup, Harris’ claim of ineffectiveness on this issue is without merit. See Castillo v. State, 281 Ga. 579, 585 (7) (c) (642 SE2d 8) (2007). Moreover, Harris has failed to show that, had counsel not been limited in her attempt to question the investigator regarding the birth dates, there is a reasonable likelihood that the outcome of the trial would have been different.

(b) Harris complains that trial counsel was ineffective in failing to object to the admission of his prior felony convictions for purposes of recidivist sentencing. But as explained in Division 2, the trial court did not err in sentencing Harris as a recidivist. Counsel therefore was not ineffective for failing to make a meritless objection. See Willis v. State, 309 Ga. App. 414, 422 (9) (c) (710 SE2d 616) (2011).

(c) Harris argues that counsel was ineffective in failing to file a motion to suppress the photographic lineup. He contends that the lineup was impermissibly suggestive and that there was a likelihood of irreparable misidentification.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and footnote omitted.) Mohammed v. State, 295 Ga. App. 514, 516-517 (672 SE2d 483) (2009). This Harris has failed to do. He has presented no argument concerning how the lineup was impermissibly suggestive. And the array presented at trial shows six photographs of males of the same race with similar complexions, hairstyles and facial hair. The investigator testified concerning how he prepares lineups and that the lineup in this case did not exactly match the “defendant’s height, weight, and age,” but contained the photographs of individuals who looked “very similar.” He stated further that the victim of the first robbery identified Harris from the lineup “immediately and without hesitation.” Under these circumstances, Harris has failed to show that the lineup would have been suppressed had counsel filed a motion. See id.; see also Rivers v. State, 283 Ga. 1, 5 (3) (b) (655 SE2d 594) (2008) (defendant did not establish ineffective assistance where no showing that identification testimony would have been suppressed had counsel so moved); Jackson v. State, 243 Ga. App. 289, 293 (3) (h) (531 SE2d 747) (2000) (no evidence lineup impermissibly suggestive).

Decided May 30, 2013.

David D. Marshall, for appellant.

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

Judgments affirmed.

Ellington, C. J., Andrews, P. J., Barnes, P. J., Phipps, P. J., Doyle, P. J., Miller, Dillard, McFadden, Ray, Branch and McMillian, JJ., concur.

       Harris also complains that the introduction of two other exhibits was improper because they “did not contain evidence of felony ‘convictions.’ ” One exhibit was Harris’ 1996 indictment for theft by receiving, and the other Harris’ 1992 guilty plea on two counts of burglary. At the hearing on the motion for new trial, both the State and the trial court agreed that these exhibits should not have been admitted. As stated by the trial court in denying Harris’ motion for new trial, the court did not consider those exhibits for purposes of sentencing Harris. The court sentenced Harris pursuant to OCGA § 17-10-7 (b) (2) for a previous conviction for a “serious violent felony,” which here could only be Harris’ prior conviction for armed robbery. See OCGA § 17-10-6.1 (a) (2). Harris therefore cannot show any harm resulting from the introduction of these exhibits.

       This subsection provides in part:
      .. . [A]ny person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would he a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted. . ..

       In Wyche, we also cited Allen v. State, 268 Ga. App. 519 (602 SE2d 250) (2004), which involved the application of OCGA § 17-10-7 (a). Id. at 522, 534 (6). Although we improperly analyzed the issue by concluding that the State “used up” its evidence of the prior conviction to support the convictions for possession of a firearm by a convicted felon, see Washington, supra, 311 Ga. App. at 519, the result was correct because as explained by the Supreme Court of Georgia in Slaughter, a prior felony conviction cannot be used by the prosecution to convict for possession of a firearm by a convicted felon and to enhance a sentence under OCGA § 17-10-7 (a). We must nevertheless disapprove of that portion of our prior opinion in Allen that applies the wrong analysis.


author: PHIPPS, Presiding Judge.

text:
    A13A0217.
    BROWN v. MOWR ENTERPRISES, LLC.
    (742 SE2d 173)
   PHIPPS, Presiding Judge.

Trevor Brown appeals the judgment of the trial court granting a writ of possession to Mowr Enterprises, LLC. Acting pro se, Brown has submitted a brief which contains no enumeration of errors, no jurisdictional statement, no statement of the applicable standard of review, no succinct statement of the proceedings below and material facts relevant to the appeal, no citations to the record, and no citations to legal authority. His brief therefore fails to comport with OCGA § 5-6-40 and the rules of this court.

“We recognize that [Brown] is acting pro se; nevertheless, that status does not relieve [him] of the obligation to comply with the substantive and procedural requirements of the law, including the rules of this [c]ourt.” “It is not the function of this [c]ourt to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” Under these circumstances, Brown has “failed to carry the burden devolving upon him of demonstrating to this court that error was committed by the trial court” in granting the writ of possession. Accordingly, the judgment of the trial court must be affirmed.

Decided May 13, 2013

Reconsideration denied June 3, 2013.

Trevor H. Brown, pro se.

Boling, Rice, McGruder, Barron & Beaudin, Taylor H. Rice, for appellee.

2. We decline Mowr Enterprises’s request pursuant to Court of Appeals Rule 15 (b) for the imposition of a frivolous appeal penalty.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

       OCGA § 5-6-40 (regarding the filing of an enumeration of errors); see Court of Appeals Rules 22, 25 (a), (c).

        Guilford v. Marriott Intl., 296 Ga. App. 503, 504 (675 SE2d 247) (2009) (citation, punctuation and footnote omitted); see Bennett v. Quick, 305 Ga. App. 415, 416 (699 SE2d 539) (2010); Simon v. City of Atlanta, 287 Ga. App. 119, 120 (1) (650 SE2d 783) (2007).

        Cronin v. Homesales, Inc., 296 Ga. App. 293, 294 (674 SE2d 35) (2009) (punctuation and footnotes omitted); see Bennett, supra; Simon, supra.

        Hicks v. Maple Valley Corp., 223 Ga. 577, 578-579 (156 SE2d 904) (1967).

       See id.; Dwyer v. Mtg. Elec. Registration Sys., 258 Ga. App. 220 (573 SE2d 489) (2002); see generally Gardner v. State, 289 Ga. App. 359, 359-360 (657 SE2d 288) (2008) (enumerated errors not supported by citations to the record, citation of authority or argument are deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2)).

        See generally Kappelmeierv. Household Realty Corp., 276 Ga. App. 575, 576 (3) (623 SE2d 752) (2005); Hardwick v. Williams, 272 Ga. App. 680, 683 (3) (613 SE2d 215) (2005).


author: Ray, Judge.

text:
    A13A0162.
    In the Interest of L. A., a child.
    (744 SE2d 88)
   Ray, Judge.

The father of now one-year-old L. A. appeals from a dispositional order of the Juvenile Court of Walton County in which the court ruled that the child was deprived as to him. The father contends that the court based its ruling on facts that were not in evidence, improperly shifted the burden of proof, applied the wrong legal standard, and supplanted Georgia law with its own judgment. For the following reasons, we vacate the finding of deprivation as to the father and remand with direction.

As a threshold matter, we note that the appellee’s brief indicates that, subsequent to the docketing of this appeal, the juvenile court issued another disposition order finding that L. A. is no longer deprived as to the father and transferring custody of L. A. to him for a period of two years. However, such order is not in the record on appeal. And as the earlier finding of deprivation may have future collateral consequences against the father — i.e., in petitioning another court for permanent custody — we decline to dismiss the appeal as moot. See generally In the Interest of T.H., 319 Ga. App. 216, 218-220 (735 SE2d 287) (2012).

The record shows the following, undisputed facts. On June 6, 2012, the mother of then three-month-old L. A. was arrested for battery, cruelty to children, and obstruction. A subsequent medical examination revealed that L. A. had suffered recent and significant physical injuries. On June 8, 2012, the Department of Family and Children Services (“DFACS”) obtained an order for shelter care, and later obtained temporary custody of L. A. pending a deprivation hearing. On June 14, 2012, DFACS filed a deprivation petition against the mother. At that time, the biological father had not legitimated the child and had not yet been involved in the child’s life.

The juvenile court conducted a deprivation hearing on June 20, 2012, during which the father was present. At the hearing, the mother stipulated to a finding of deprivation based on L. A.’s unexplained, recent injuries which were consistent with child abuse, the mother’s mental issues, substance abuse, and instability. Thereafter, the juvenile court entered a provisional order finding L. A. to be deprived as to the mother and placing the child in the temporary custody of DFACS. The juvenile court scheduled a hearing for July 9, 2012, to receive evidence of deprivation as to the biological father and to make a final disposition concerning the custody of L. A. On July 6, 2012, the father filed a petition to legitimate L. A., to which the mother consented.

At the hearing on July 9, 2012, the juvenile court granted the father’s petition to legitimate and received sworn testimony from two witnesses regarding custody: L. A.’s mother and Alissa Heil, a caseworker for DFACS. Heil testified that she had conducted a home evaluation on the father and that the father lived with his alleged common-law wife with whom he has two older children. Heil further testified that she had inquired about the father’s child care arrangements for L. A. and was satisfied that the father was adequately prepared to take care of the child. The mother testified that she had known and previously lived with L. A.’s father for approximately two years, during a period in which he was separated from his alleged wife. Although the mother testified that the father had paid for everything during their time together, including rent, utility bills, and groceries, she further testified she would feel very uncomfortable with the father’s wife being around L. A.

No other testimony or evidence related to the father’s ability to care for L. A. was presented at the hearing on July 9, 2012, and a review of the hearing transcript reveals that the remainder of the proceeding consisted of arguments and discussions between the court, DFACS personnel, court-appointed special advocates (“CASAs”), and counsel for the parties. At the outset of the hearing, counsel for DFACS stated that an evaluation of the father had been conducted and that DFACS did not have any concerns about the father’s home or his ability to care for L. A. Accordingly, DFACS recommended that custody be transferred to the father. The juvenile court expressed concerns about placing L. A. with the father because he did not know anything about the child. The guardian ad litem for the child stated that her only concerns were about L. A.’s medical issues and whether the father would be able to care for the child during the day, but she further stated that she would not be opposed to custody being transferred to the father. Heil advised the juvenile court that L. A. had no long-term problems from the physical injuries she sustained that led to her initial placement in DFACS custody. The juvenile court expressed concerns about possible conflicts between the mother, the father’s wife, and the child, the father’s ability to care for an infant, and the father’s failure to pay for the medical expenses during the mother’s pregnancy. The father’s counsel argued that there was no evidence of deprivation on the part of the father and that there was no legal basis to keep L. A. from his custody, which the juvenile court conceded. Nevertheless, citing concerns with the father’s relationship with L. A. and the family situation in general, the juvenile court found L. A. to be deprived as to the father and left the child in the custody of DFACS, with placement with the father until a review hearing could be held in 60 days. Notably, the juvenile court acknowledged that “evidently there’s no deprivation on [the father’s] side” and stated that the father would “probably win on appeal” with regard to its ruling on the deprivation issue.

1. The father contends that the juvenile court’s finding of deprivation was in error because there was no evidence presented at the hearing to support its finding. We agree.

This appeal concerns a dispositional order rather than a deprivation order. In order to be a valid dispositional order, the child who is the subject of the order must be found to be “deprived.” OCGA § 15-11-55 (a). See also In re the Interest of R. J. M., 295 Ga. App. 886, 889 (1) (673 SE2d 527) (2009). Under Georgia law, a deprived child is defined as a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals[.]” OCGA § 15-11-2 (8) (A). In addition, a “deprived child” is one who “[h]as been abandoned by his or her parents or other legal custodian” or “[i]s without a parent, guardian, or custodian.” OCGA § 15-11-2 (8) (C), (D). A finding of deprivation must be supported by clear and convincing evidence. In the Interest of J. W., 271 Ga. App. 518, 520-521 (610 SE2d 144) (2005).

Decided June 3, 2013.

Jennifer N. Cline, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Prior, Daniel & Wiltshire, LeeR. Moss, for appellee.

As acknowledged by the juvenile court, there was no evidence presented during the dispositional hearing on July 9,2012, regarding any deprivation of L. A. on the part of the father. In its dispositional order, the juvenile court made no specific factual findings that L. A. was deprived as to the father. The court merely listed reasons as to why it was declining to transfer custody to him and stated that it “finds the child deprived as [to] the [f]ather due to the child’s current needs and welfare.” This finding was not supported by any evidence.

The juvenile court is required to set forth the findings of fact upon which it bases its finding of deprivation, and it must base its finding of deprivation on clear and convincing evidence. In the Interest of T. D., 309 Ga. App. 9, 13 (1), (2) (709 SE2d 883) (2011). As the juvenile court failed to do either in this case, we vacate its finding of deprivation as to the father and remand the case to the juvenile court with direction to conduct further proceedings, if necessary, not inconsistent with this opinion.

2. In light of our holding in Division 1, we do not address the father’s remaining enumerations of error.

Judgment vacated and case remanded with direction.

Barnes, P. J., and Miller, J., concur.


text:
    A13A0173.
    CLAY v. THE STATE.
    (744 SE2d 91)
   PHIPPS, Presiding Judge.

Michael Clay appeals his convictions for aggravated assault and serious injury by vehicle. He contends that the trial court erred by denying his motions for a mistrial — one made prior to the jury being sworn, and another made during the state’s presentation of the evidence. We affirm.

Clay was charged in a 17-count indictment with crimes, including false imprisonment, robbery, aggravated sexual battery, murder, kidnapping with bodily harm, rape, aggravated sodomy, and aggravated assault, allegedly committed from 2000 to 2006. Clay moved to sever the offenses for trial. The trial court issued an order pertinently stating, “The District Attorney has agreed that severance would be appropriate. In that the parties are in agreement, the Court will enter a finding that the offenses alleged are factually distinguishable but cognizable generally when grouped as related incidents.” Accordingly, the trial court granted the motion to sever, while joining certain specified offenses for trial.

A redacted indictment showed that Counts 16 and 17 from the original indictment, which alleged offenses of aggravated assault committed against D. B. and K. W., respectively, were tried together in this case. As to the charge of aggravated assault involving D. B., the jury found Clay guilty of the lesser included offense of serious injury by vehicle; as to the aggravated assault involving K. W., the jury found Clay guilty as charged.

1. Clay complains that the trial court erred by denying his first motion for a mistrial, made after several impaneled jurors affirmed that they had been exposed to a newspaper article about the case.

The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial. Where a motion for mistrial is made on the ground of inadmissible matters being placed before the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion, the refusal to grant a mistrial is not error.

On Monday, May 11, 2009, after a jury had been impaneled, court proceedings in the case ended for the day, and the jury was excused until the following Monday. On Monday, May 18, 2009, court proceedings in the case resumed, and the following occurred. Outside the presence of the jury, defense counsel notified the court that the day after the jury had been impaneled, an article about the case was published in a local newspaper; defense counsel asked the trial court to “give a general voir dire of the jury and ask them if they have heard or read anything about the defendant since jury selection. If there is a positive response, I would ask that that juror or jurors be individually voir dired.” The prosecution had no objection to defense counsel’s request.

The jury was brought into the courtroom, and the trial court inquired as follows:

I welcome you back to this term of court, this week of court, the second week of a two-week session. And I have several questions to ask you and I’ll ask you to please respond by raising your hand. It may have been an article in the newspaper or on the television during that last week concerning this case. Did anyone happen to see that?

Five jurors raised their hands. The trial court excused all the jurors from the courtroom and individually called into the courtroom each of the five jurors who had raised his or her hand. Two of the jurors said they had noticed the article but had not read it; one juror said he had not read the article but had read the headline and had seen that there were more charges than the two that were mentioned during jury selection; another juror said that her mother had read the article and told her that the defendant had been charged with “something like” 19 counts; and another juror said that she had read the article. Defense counsel moved for a mistrial, asserting that the article had “undone the severance.” The trial court denied the motion. Thereafter, the jury entered the courtroom and was sworn.

“The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn. Therefore, the trial court correctly refused to declare a mistrial.” “However, this court has held that even though the counsel failed to follow the correct procedure or to use the proper procedural tool, we will not rely upon his inaccurate nomenclature, where the relief sought in a motion is clear.” Because Clay’s motion for mistrial came after each exposed juror had been individually examined, we view the motion as a challenge to the poll, which is “directed solely to an objection ... in [an] individual juror.”

Challenges to the poll, the individual juror, are either peremptory or for cause. Challenges for cause are made in one of two forms — for principal cause or for favor. Principal cause is disqualification based on the grounds enumerated in OCGA § 15-12-163, i.e., the juror is not a citizen, is under 18 years of age, is incompetent because of mental illness, retardation or intoxication, or is so near in kinship to the prosecutor or accused as to disqualify him. Challenges for favor, in a criminal case, are based on admission by the juror that he is biased for or against one of the parties, in response to questions authorized by OCGA § 15-12-164, i.e., whether the juror has formed and expressed an opinion as to the guilt or innocence of the accused, has prejudice or bias for or against the accused, is perfectly impartial between the state and the accused, and in capital felony cases is not conscientiously opposed to capital punishment. We are confronted here with challenges for favor. Whether to strike a juror for favor lies within the sound discretion of the trial court, and absent manifest abuse of that discretion, appellate courts will not reverse.
For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the court’s charge upon the evidence. . . . A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.

The trial court questioned the five jurors individually to ascertain whether any of them had been prejudiced by their exposure to the newspaper article. “The record showfed] that none of these [five] jurors had fixed opinions about [Clay]’s guilt or any other issue in the trial.” None of the five jurors stated that he or she had formed, nor had any of them expressed, an opinion as to Clay’s guilt or innocence. “The burden is on him who asserts error to show it affirmatively by the record.” Clay has not met his burden. In his appellate brief, Clay concedes that each of the jurors who had been exposed to the newspaper article indicated that he or she could render a fair, unbiased decision based solely on the evidence presented. “We find that no prospective jurors were erroneously qualified to serve due to their exposure to pretrial publicity.” Based on the jurors’ responses, the jurors were not disqualified, and the trial court did not abuse its discretion in failing to strike any of the five jurors.

2. Clay contends that the trial court erroneously denied his second motion for a mistrial, made after a law enforcement officer testified as to evidence of an unrelated homicide.

Specifically, Clay challenges evidence introduced through the following colloquy:

Q. On or about February the 15th of 2006, did you become aware of a victim by the name of [K. W] and another victim by the name of [D. B.]?
A. Yes, I did.

Decided June 3, 2013.

Peter D. Johnson, for appellant.

Q. And how was it that you became aware of these two people?
A. We were currently focusing on a homicide that was unrelated to this incident that had occurred when Deputy [Name] approached me with someone that he thought may have some information regarding to the homicide that we were currently working that’s unrelated to this incident.

Defense counsel moved for a mistrial, arguing that the officer’s testimony impermissibly connected Clay to a homicide, and that “there are five people on this jury that know something about a homicide in connection with Michael Clay.” On appeal, Clay asserts that the officer’s testimony “informed [the jury] of Clay’s connection to a murder, which... had been severed out of this trial,” and that the testimony “prejudiced Clay by placing his character into evidence.”

To the extent that the same objection launched at trial is the objection urged on appeal, “[o]ur duty as an appellate court is to correct errors alleged to have been made at trial by the trial court and not to manufacture them.” The foregoing testimony did not connect Clay with a murder, inasmuch as it indicated that an unnamed individual may have had information about two unrelated crimes. “[Clay] merely speculates that this testimony had a malignant effect upon the jury. This enumerated error] is without merit.” We see no abuse of discretion in the trial court’s refusal to grant a mistrial on this basis.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

Ashley Wright, District Attorney, Titus T Nichols, Assistant District Attorney, for appellee.

        Edwards v. State, 200 Ga. App. 580, 582 (1) (408 SE2d 802) (1991) (citations and punctuation omitted).

       The headline of the article read: “Trials begin with assault.” The article stated that there were 17 criminal counts against Clay which were “broken up” because not all were related, that Clay was suspected of being a serial rapist, and that Clay was facing charges that included murder. The article stated that Clay was suspected of a 2006 murder in which a woman was brutally attacked, lapsed into a coma, never regained consciousness, and died; and that according to reports in an earlier edition of the newspaper, DNA evidence allegedly connected Clay to attacks on three other women who had reported being beaten, kicked, and sexually assaulted in 2000 and 2003.

        Sharpe v. State, 272 Ga. 684, 687 (5) (531 SE2d 84) (2000) (citations and punctuation omitted).

        Swint v. State, 199 Ga. App. 515, 516 (405 SE2d 333) (1991) (citations and punctuation omitted); Sharpe, supra at 687 (5) (recognizing existence of authority for disregarding the nomenclature of a defendant’s premature motion for mistrial when the import of the motion is clear); Hughey v. State, 180 Ga. App. 375, 377-378 (2) (348 SE2d 901) (1986).

        Thompson v. State, 109 Ga. 272, 279 (34 SE 579) (1899) (citation omitted); Cauley v. State, 130 Ga. App. 278, 281 (1) (a) (203 SE2d 239) (1973) (“A challenge to the poll is one peremptory or for cause, addressed to an individual juror.”) (citation omitted).

        Harris v. State, 178 Ga. App. 735, 736 (1) (344 SE2d 528) (1986) (citations omitted).

        Huckabee v. State, 287 Ga. 728, 730 (2) (699 SE2d 531) (2010) (citation omitted); Barnes v. State, 269 Ga. 345, 351 (7) (496 SE2d 674) (1998) (“In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence.”) (punctuation and footnote omitted); Deyoung v. State, 268 Ga. 780, 784 (4) (493 SE2d 157) (1997) (same).

       Barnes, supra.

        Roach v. State, 221 Ga. 783, 786 (4) (147 SE2d 299) (1966).

        Cromartie v. State, 270 Ga. 780, 784 (9) (a) (514 SE2d 205) (1999) (citations omitted) (trial court did not err by failing to excuse for cause prospective jurors who had been exposed to pretrial publicity but were qualified to serve; jurors either had no opinion about the case or could lay aside their opinion and render a verdict based solely on the evidence and the trial court’s instructions); Lawler v. State, 276 Ga. 229, 235 (5) (576 SE2d 841) (2003) (trial court did not err in denying defendant’s motion to excuse for cause several prospective jurors who indicated they had some exposure to pretrial news reports, but that the exposure was limited and that they could set aside anything they had heard or seen and base their personal verdicts only on the evidence presented in the courtroom); Barnes, supra (trial court did not err in failing to excuse for cause six prospective jurors due to pretrial publicity; record showed that none of the six jurors had fixed opinions about the defendant’s guilt or any other issue in the trial); Williams v. State, 222 Ga. 208, 213 (4) (149 SE2d 449) (1966) (holding that reports of the news media — newspapers, radio, and television — in the investigation of the crime by reports and pictures with detailed accounts and descriptions as to individuals alleged to be involved, their past criminal history and quoted opinions of officers and prosecution officials, may be read or heard by prospective jurors in the county where the crime was committed, and such did not disqualify a juror from serving if on the voir dire the juror answered in the negative the questions propounded to the juror under OCGA § 15-12-164).

       See generally Hughey, supra (trial court did not abuse its discretion in refusing to grant prematurely requested mistrial, and in failing, sua sponte, to dismiss the venire).

        Edwards, supra at 583 (2) (citations and punctuation omitted).

       Id. (citation omitted).

       See generally Tate v. State, 255 Ga. App. 82, 84 (2) (564 SE2d 495) (2002) (trial court did not abuse its discretion in refusing to grant mistrial; defendant’s character was not impugned or placed at issue by an officer’s testimony that he displayed a lineup of “jail photographs” to a witness, where the officer never intimated that the defendant’s picture was in that group); Foster v. State, 190 Ga. App. 686, 688 (2) (379 SE2d 634) (1989) (no error in trial court’s refusal to grant a mistrial after the introduction of evidence that defendant had been charged with another crime unrelated to the sexual assault at issue at trial; the record shows that, while counsel for defendant realized immediately that the witness was referring to a hearing for a crime other than that ruled admissible because of its similarity, neither the prosecutor nor trial judge realized the testimony referred to a separate criminal proceeding until that fact was brought out during a hearing outside the presence of the jury; considering the totality of the circumstances, there was no harmful effect upon the jury).


text:
    A13A0373.
    OGLETREE v. THE STATE.
    (744 SE2d 96)
   PHIPPS, Presiding Judge.

Randall Floyd Ogletree was indicted for committing six sexual offenses against his seven-year-old granddaughter, K. O.; a six-year-old girl, C. B., whose father lived next door to him; and a mentally disabled seventeen-year-old female, D. C., who also lived next door to him. Specifically, the indictment alleged that Ogletree had committed against K. O.: (i) child molestation, by placing his hand on the child’s vaginal area; (ii) child molestation, by showing the child photographs depicting nude persons and persons performing sexual acts; and (iii) enticing a child for indecent purposes, by soliciting and taking the child to a building for the purpose of child molestation and indecent acts. The indictment alleged that Ogletree had committed against C. B.: (iv) child molestation, by showing her photographs depicting nude persons and persons performing sexual acts; and (v) enticing a child for indecent purposes, by soliciting and taking her to a wooded area for the purpose of child molestation and indecent acts. The sixth count of the indictment charged Ogletree with committing sexual battery against D. C., by making physical contact with her breasts. Ogletree was convicted as charged. On appeal, he contends that the trial court erred by denying his motion for a directed verdict of acquittal on the sexual battery count, by failing to instruct the jury on the defense of accident, and by denying his motion for mistrial. We affirm.

The state’s evidence showed the following. At the time in question, Ogletree and his wife lived next door to his son and his son’s family, which included seven-year-old K. O. K. O.’s mother testified that, on April 11, 2011, K. 0. told her that her grandfather (Ogletree) had been showing her books with pictures of naked people and that he kept the books in the “barn” in his back yard. The child also told her mother that, on one occasion when her grandfather had taken her riding on a four-wheeler to what the child called a “tree house,” Ogletree unzipped his pants and told her to look at him. The child told her mother further that her grandfather had told her not to tell anyone about those instances because, if she did, he would be in trouble.

The mother related K. O.’s allegations to her husband. When K. O.’s father talked to K. 0., she told him that Ogletree had touched her private area, as she made a gesture with her hand. And she told him that Ogletree had taken her on four-wheeler rides to a tree house, which she described was through the woods and past a gate, and surrounded by flowers. K. O.’s father went to Ogletree’s house, but only his wife was at home. Ogletree’s wife followed K. O.’s father back to his own residence and confronted her husband’s grandchild: “Do you know that your papa is going to lose his job? He’s going to lose the house. He’s going to lose everything if you tell these lies on him. He would not ever do this to you.” She yelled at the child, and repeatedly told her, “You’re lying, you need to stop lying right now.”

K. O.’s father contacted the police. That same day, April 11, a law enforcement officer went to Ogletree’s residence. The officer testified that Ogletree retrieved pornographic magazines from a storage building behind his house and handed them to him.

A couple who lived in the residence on the other side of the Ogletrees’ residence was visiting the Ogletrees when Ogletree led the law enforcement officer to the small building in his back yard, retrieved therefrom pornographic magazines, and handed them to the officer. The man testified that, based on the events that occurred and statements made to him at that time, he became concerned about whether Ogletree had engaged in inappropriate conduct either with his young daughter, then six-year-old C. B., or with his seventeen-year-old sister-in-law D. C., who functioned mentally as a seven- or eight-year-old child and who lived in his home.

As a result of the foregoing, K. O., C. B., and D. C. were interviewed by a forensic interviewer. K. O. said the following during her interview, which was conducted on April 12, 2011. Ogletree had led her to the small building behind his house, picked her up, then touched her vaginal area with his finger. Even though she had her clothes on, she said, “you could feel through my clothes” what he was doing — the child motioned with her finger. Ogletree had asked her whether she liked it when he “tickled her button”; when she said no, he put her down, and she ran inside the house where her grandmother was. K. O. told the interviewer that Ogletree had touched her that way before and called it “tickling her button.” On another occasion, about two months before the interview, as K. O. recalled, Ogletree drove her on his four-wheeler to a tree house, where he picked up a magazine, pointed to pictures, and told her to look. The pictures depicted naked adults; there were “boys peeing in girls’ mouths” and something of a whitish color was coming out of the girls’ mouths. K. O. also said during her interview that Ogletree had made her swear not to tell anyone about his showing her those pictures. An audiovisual recording of this child’s forensic interview was played for the jury.

C. B. said the following during her forensic interview, which was conducted on April 14, 2011. Ogletree had used his four-wheeler to take her and K. O. camping in a “tent” in the woods. There, he had shown the girls pictures of grownups wearing no clothes, grownups who were holding up their shirts, and grownups who were pulling down their pants. Ogletree had been teaching her and K. O. about certain male and female body parts, as she so designated: those parts that should not be touched. An audiovisual recording of this child’s forensic interview was played for the jury.

Based on K. O.’s disclosures to her father, he and C. B.’s father searched for and found the “tree house” that she had described. Approximately 100 yards from K. O.’s residence, down a dirt path, through the woods, past a gate, and adjacent to a field of flowers, was a deer stand. It stood about five or six feet tall; it had four walls, a roof, and a window; about two or three people could fit inside it. And leading to the deer stand was a four-wheeler trail.

K. O. was eight years old when she testified at trial in November 2011. She stated that, when she was six or seven years old, Ogletree touched her private area and showed her “nasty” pictures that made her uncomfortable; one picture was of “a boy peeing in a girl’s mouth,” and neither the boy nor the girl in the picture was wearing any clothes.

C. B. was six years old when she testified at trial. She stated that, when she was five years old, she and Ogletree rode a four-wheeler into the woods; while in the woods, Ogletree showed her magazines with “coupons or stuff” and pictures of boys and girls who were wearing clothes; and “then we came right back to his house for the other kids to ride.” When asked what she thought of Ogletree, she answered, “He’s nice. I like him really a lot because when I’m there he usually gives me candy and cookies.” Later during her testimony, C. B. stated that on the back of the magazines were pictures of boys and girls who were not wearing any clothes. Afterward, on redirect, when the child was asked what her mother had told her to say, she answered, “Told me to say that I love [Ogletree] a lot and that he always give me candy but not really before dinner because it’s not really good for you and he loves me and I love him.”

Seventeen-year-old D. C. testified that Ogletree was her neighbor, that he had touched her breast, and that she had not wanted him to do so. The touching, she said, had occurred when she was riding her bicycle at a neighbor’s birthday party.

Ogletree called several witnesses who all testified that he had a good reputation in the community and that they would believe him under oath. Ogletree, 48 years old at his trial, also took the stand and denied all charges. He admitted that he had given four-wheeler rides to K. O., as well as to his other grandchildren and to C. B. and D. C. But he denied ever taking either C. B. or D. C. out of his own yard, and denied ever showing C. B. any pornography or pictures depicting nudity.

Ogletree admitted, however, taking K. O. to the deer stand, which he described as "built more like a house, straight up. Windows around it like a shooting house. Has a tall ladder,” with steps that “are pretty far apart.” To explain a possible, but inadvertent, touching of the girl’s vaginal area, Ogletree testified that, once,

[K. O.] wanted to see the deer stand and see out of it. She had started up [the steps] and froze up and didn’t want to move. I said well, just come back down and we’ll go. She said, no, paw-paw. I want to see. I want to see. So I went up behind her and put my hand on her butt and pushed her on up the steps to make her go up. That’s as far as it went. I did take my hand, and I might have touched her in the wrong direction. But it’s never intentional. That’s my baby.

Ogletree denied ever unzipping his pants while in the deer stand.

Ogletree claimed that the pornographic magazines that he had stored in the back yard building belonged to his brother. He denied showing them or any pornographic images to K. 0. However, once, after opening the building to take out his four-wheeler, he testified, he discovered K. O. looking at one of the magazines, chastised her, and took it from her.

Ogletree denied ever inappropriately touching D. C., but acknowledged, “I would pick at her” when she sometimes rode her bike. Ogletree recalled that, at a birthday party,

I was picking at her, yes, juking her on her arms and on her sides. She had told her sister I had touched her. Me picking at her, I don’t know if I did or not so I stopped what I was doing. I apologized immediately to her and her sister. Even if I did, I didn’t realize I had done it. So I had stopped and apologized to both of them.

Given Ogletree’s claim that he had not intentionally touched D. C.’s breast, the state called two rebuttal witnesses. K. O.’s mother testified that, in September 2010, when she was pregnant with her last child, she walked past Ogletree when visiting his and his wife’s home, and “he flicked my breast— It wasn’t a grab, it wasn’t a pinch; it was just with his hand.” She testified that Ogletree lifted her breast; that there was nothing else he might have been reaching for, other than to grab her breast; and that, afterward, Ogletree began laughing. K. O.’s mother testified that Ogletree’s wife was nearby when the incident occurred.

The other rebuttal witness was C. B.’s mother, who testified that around 2009, when Ogletree was once visiting her home, she was carrying on her hip then three- or four-year old C. B., and that “[Ogletree] was acting like he was going to pinch [the toddler] and reached over with his other hand and grabbed my breast.” She testified that it was not accidental, that he squeezed her breast.

Then, Ogletree called his wife to the stand. She recalled an incident in September 2010 when K. O.’s mother, then about four or five months pregnant, was at their home for breakfast. The three adults were in the kitchen together, and as “[K. O.’s mother] was coming up behind him,” Ogletree turned around and “may have brushed her breast, but he did not grab her breast or anything else.”

1. Ogletree contends that the trial court should have granted a directed verdict of acquittal on the sexual battery count, which pertained to D. C.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged, i.e., under the rule of Jackson v. Virginia, [] whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

(a) Ogletree asserts, “[D. C.] did not testify that Appellant specifically touched her breasts, she testified that he touched her and made some type of physical gesture during her testimony.”

But the trial transcript reveals more. When D. C. was asked where Ogletree had touched her, she answered, “Right here,” as she physically indicated a location. The prosecutor requested that the record reflect that D. C. had pointed to her breast. With no objection from the defense, the trial court responded, “Okay.” Additionally, after D. C. testified, defense counsel expressly agreed, "Your Honor, I believe that when [D. C.] testified she indicated that she’d been touched on the breast while she was on her bicycle. That’s what the State alleges in their indictment. So she did testify to that.”

In light of the record and transcript before us, Ogletree’s assertion provides no basis for reversal.

(b) Ogletree argues that the state failed to prove venue as to that count. But D. C. testified that Ogletree had touched her while they were at a certain person’s birthday party, and another witness testified that that party occurred in Troup County, the county in which Ogletree was tried. Ogletree’s argument is hence not supported by the record.

2. Ogletree contends that the trial court committed reversible error by failing to instruct the jury regarding the defense of accident. “The effect of accident on guilt is set forth in OCGA § 16-2-2: ‘Aperson . shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.’ ” “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.”

Ogletree argues that his testimony authorized a charge on accident, which he claims was his sole defense as to three counts of the indictment. But Ogletree’s trial counsel did not request a charge on accident, nor did he

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

“In jKelly, [the Supreme Court of Georgia] adopted the federal definition of plain error from United States v. Olano,[ ] as well as its four-pronged test.”

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Ogletree has not specified how, or even asserted that, the “plain error” standard has been satisfied. Having nevertheless examined the record, we conclude that the test is not satisfied for any of the three counts at issue here.

(a) First, Ogletree claims that he was entitled to an instruction on accident as a defense to the charge of child molestation committed against K. O., by showing the child photographs depicting nude persons and persons performing sexual acts. “A person commits the offense of child molestation when such person... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Ogletree claims that an instruction on accident was authorized by his testimony that he never showed any pornographic magazines or images to K. O., although he had once discovered the child looking at such materials and taken the materials from her.

But by that testimony, Ogletree denied having done the acts that formed the basis of the charged crime. To establish an evidentiary foundation for an instruction on the defense of accident, “the defendant must admit to having committed an act that would constitute the crime charged, but claim that the act was done unintentionally.” “Since [Ogletree] denied doing [the] acts that formed the basis of [the charge] against him, his testimony could not form the basis for the requested jury instruction on accident.” Hence, with respect to that count of the indictment, the court’s failure to include a specific instruction on accident does not constitute plain error.

(b) The remaining two counts that Ogletree cites are: (i) child molestation committed against K. O., by placing his hand on the child’s vaginal area; and (ii) sexual battery committed against D. C., by touching her breast. Regarding the first of those two counts, Ogletree claims that a charge on accident was authorized by his testimony about assisting K. O. climb the ladder of the deer stand: “I went up behind her and put my hand on her butt and pushed her on up the steps to make her go up. That’s as far as it went. I did take my hand, and I might have touched her in the wrong direction. But it’s never intentional.” Regarding the second of those two counts, Ogle-tree claims that a charge on accident was authorized by his testimony that he had never touched D. C. inappropriately, although he had been “picking at her” and “juking her on her arms and on her sides.”

The defense of accident “applies where the evidence negates the defendant’s criminal intent, whatever that intent element is for the crime at issue.” “We view the trial court’s jury charges as a whole to determine whether the jury was fully and fairly instructed on the law of the case.” Here,

to the extent that the omission [of a specific instruction on accident] was error, [] there is no likelihood that it affected the outcome of the trial, as the court instructed the jury on the law regarding criminal intent, including that it is an element of all crimes charged; [and] the State’s burden to prove all elements of the crimes charged beyond a reasonable doubt.

Because the court’s charge, when considered as a whole, fully and fairly instructed the jury that it had the duty to acquit Ogletree if it determined that the state had failed to prove his guilt beyond a reasonable doubt, it was not plain error under Kelly not to give a specific charge on accident.

3. Ogletree contends that the trial court erred by not declaring a mistrial when, during cross-examination, the prosecutor posed to him, “Now, you went to see the psychosexual behavior therapist —.” Defense counsel cut short the prosecutor’s question with an objection. Then, outside the presence of the jury, defense counsel asserted that the question called for improper character evidence and requested that the court declare a mistrial. The trial court sustained the objection, but declined to declare a mistrial. Defense counsel withdrew an earlier request for curative instruction, stating that he did not “want to bring it to [the juror’s] attention again.” Thus, when the court recalled the jury into the courtroom, the court directed the prosecutor to resume cross-examination, at which point the prosecutor announced that he had no further questions.

Ogletree maintains on appeal that the prosecutor’s question was prejudicial in that it implied that he had seen a psychosexual behavior therapist to seek treatment because he had committed the charged offenses. “When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. Whether the statements are so prejudicial as to warrant a mistrial is within the trial court’s discretion.”

This court has held that an unanswered question does not furnish grounds for a mistrial. Here, the prosecutor’s question was truncatedby objection, the trial court sustained the objection, and the question was left unanswered. Though the trial court might have issued a curative instruction, defense counsel expressed his apparently tactical decision not to have the jurors be reminded of the matter. Nothing in the record indicates — and Ogletree makes no assertion — that the prosecutor either resumed that line of inquiry or thereafter alluded to it during the state’s closing argument.

But even assuming that the prosecutor’s truncated and abandoned question was nevertheless improper, and assuming further that the trial court committed error under OCGA § 17-8-75, reversal of Ogletree’s judgment of conviction is not warranted. “[I]t is fundamental that harm as well as error must be shown for reversal.” Here, K. O. made explicit allegations, during her forensic interview, of Ogletree’s acts that formed the basis of the charges concerning her, as did C. B. with respect to the acts that formed the basis of the charges concerning her. Both girls testified to the same at trial. Their accounts of Ogletree’s conduct were corroborated by the evidence of the deer stand and the pornographic materials that Ogletree stored in his back yard storage shed along with his four-wheeler. Furthermore, D. C. described at trial the act that formed the basis of the charge concerning her. And the state presented evidence that Ogletree had groped the breasts of two other women without their consent. Moreover, the trial court charged the jury fully as to what constituted evidence, including instructing them that evidence did not include the questions asked by the lawyers. “All things considered, including the strength of the State’s evidence in this case, we conclude that it is highly probable that [any] trial court[ ] error in failing to comply with OCGA § 17-8-75 did not contribute to the verdicts.”

Decided June 3, 2013

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, C. Jephson Bendinger, Assistant District Attorney, for appellee.

Given the circumstances of this case, the trial court committed no reversible error in denying Ogletree’s motion for a mistrial. Neither Tyler v. State nor Coleman v. State, the cases upon which Ogletree relies, mandates a conclusion in his favor.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

       The trial court ruled that these witnesses’ testimony was admissible to show Ogletree’s course of conduct and bent of mind, and instructed the jury on these permissible uses of similar transaction evidence.

       443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (holding that, when an appellant challenges the sufficiency of the evidence to support the conviction, “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”).

        Dorsey v. State, 279 Ga. 534, 542 (3) (615 SE2d 512) (2005) (citations omitted).

       See Jackson, supra; Jenkins v. State, 284 Ga. 642, 646 (4) (670 SE2d 425) (2008) (holding that evidence, as stipulated at a trial, was sufficient to find beyond a reasonable doubt that appellant was guilty under standard of Jackson, supra); OCGA § 24-4-8 (2011) (“The testimony of a single witness is generally sufficient to establish a fact.”); see generally Hodges v. Hodges, 261 Ga. 843, 844 (1) (413 SE2d 191) (1992) (noting that a “stipulation is any agreement made by attorneys respecting business before the court”); Benton v. State, 286 Ga. App. 736 (649 SE2d 793) (2007) (explaining that an appellant bears the burden of showing error affirmatively by the record, and if the transcript does not fully disclose what transpired at trial, it is the duty of the complaining party to complete the record pursuant to OCGA § 5-6-41 (f)).

       See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI (providing that “all criminal cases shall be tried in the county where the crime was committed”); OCGA § 17-2-2 (a) (“Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.”); Jones v. State, 272 Ga. 900, 902-903 (2) (537 SE2d 80) (2000) (holding that the state must come forth in all criminal prosecutions with evidence to show beyond a reasonable doubt that venue is properly laid).

       See Jones, supra at 902-903 (2) (explaining that the state may prove venue using either direct or circumstantial evidence).

        Wilson v. State, 279 Ga. 104, 105 (2) (610 SE2d 66) (2005), quoting OCGA § 16-2-2.

        Jones v. State, 287 Ga. 770, 771-772 (2) (700 SE2d 350) (2010) (citation and punctuation omitted).

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

       OCGA § 17-8-58 provides:
      (a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence.
      (b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.

        Allen v. State, 290 Ga. 743, 744-745 (3) (723 SE2d 684) (2012); see Gamble v. State, 291 Ga. 581, 583 (4) (731 SE2d 758) (2012) (because no objection was made to the jury instruction at trial, any alleged error in that charge is subject to “plain error” review under Kelly, supra); McLean v. State, 291 Ga. 873, 876 (4) (738 SE2d 267) (2012) (where record contains no written request, no oral request during the charge conference for instruction, and no objection to the court’s failure to give instruction, appellate review is limited to a determination of whether the trial court’s instruction constituted “plain error” under Kelly, supra); Wilson v. State, 291 Ga. 458, 459 (729 SE2d 364) (2012); Kelly, supra at 32-33 (2).

       507 U. S. 725 (II) (113 SCt 1770, 123 LE2d 508) (1993).

        Guajardo v. State, 290 Ga. 172, 175-176 (4) (718 SE2d 292) (2011) (footnote omitted); see Allen, supra at 745 (3).

        Kelly, supra at 33 (2) (a) (citation, punctuation and emphasis omitted); see Guajardo, supra at 176 (4), n. 3 (stating four-pronged test set forth in Olano).

       While we will review properly enumerated and argued claims of jury instruction
      error regardless of whether the appealing party specifically casts the alleged infirmity as “plain error,” parties should be advised that the hurdle to establishing plain error is high,... and therefore that the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that their claims in this regard will be rejected.

        Kelly, supra at 32 (1), n. 2 (emphasis supplied).

       OCGA § 16-6-4 (a) (1).

        Manders v. State, 281 Ga. App. 786, 790 (3) (637 SE2d 460) (2006) (citations and punctuation omitted); see Mangrum v. State, 285 Ga. 676, 680 (6) (681 SE2d 130) (2009) (explaining that, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the defense of accident).

        Manders, supra at 790-791 (3) (citation omitted); see Mangrum, supra.

       See Kelly, supra (explaining that four-prong test must he satisfied).

        State v. Ogilvie, 292 Ga. 6, 9 (2) (b) (734 SE2d 50) (2012); see Metts v. State, 210 Ga. App. 197, 198 (2) (435 SE2d 525) (1993) (“The essence of the defense of accident is that the defendant’s act is not intentional.”) (citation and punctuation omitted).

        Davis v. State, 290 Ga. 757, 761 (5) (725 SE2d 280) (2012) (citation and punctuation omitted); see Curry v. State, 291 Ga. 446, 454 (6) (729 SE2d 370) (2012).

       Compare Manders, supra at 791 (3) (concluding that defendant was not entitled to a jury charge on accident because it was not sufficient for defendant to take the stand and merely speculate about possible alternative scenarios of how the incident transpired; rather, defendant was required to admit the underlying act that formed the basis for the charge, which he failed to do), with Metts, supra at 198 (2) (concluding that defendant was entitled to a jury charge on accident as a defense to the child molestation count, where victim testified that defendant touched victim’s penis by placing defendant’s hand on the outside of victim’s pajamas, and where defendant denied he intentionally touched the victim in the manner alleged and claimed that, while sleeping in the same bed with the boy, he may have unintentionally touched him).

        McLean, supra at 877 (4) (citation omitted); Sydenstricker v. State, 209 Ga. App. 418, 419-420 (2) (433 SE2d 644) (1993) (determining that charges as a whole adequately addressed the primary defense that sought to negate the intent element of charged crime). See generally Alatise v. State, 291 Ga. 428, 430 (2) (728 SE2d 592) (2012) (pretermitting whether the defendant met his burden with regard to the first and second prongs of the Kelly test, yet determining that plain error under Kelly test was not established because the omission of a specific instruction did not affect the outcome of the trial proceedings, where a review of the charge in its entirety showed that any error in the omission of a specific charge was harmless); Allen, supra at 745-746 (3) (concluding that, in light of the trial court’s charge as a whole, the omission of a specific instruction did not amount to plain error under Kelly because there was no likelihood the omission affected the outcome of the trial proceedings); accord Scott v. State, 290 Ga. 883, 886 (4) (725 SE2d 305) (2012) (concluding that defendant had failed to demonstrate plain error under Kelly, where defendant complained that trial court had failed to charge that the state bore the burden of disproving his alibi defense beyond a reasonable doubt, where consideration of the charge as a whole showed that the trial court completely and correctly instructed the jury on the defendant’s presumption of innocence, the state’s burden to prove beyond a reasonable doubt that the defendant committed the crimes at issue, and on assessment of the credibility of witnesses).

       See McLean, supra; Sydenstricker, supra; Davis, supra; Curry, supra. See generally Edmonds v. State, 275 Ga. 450, 454 (4) (569 SE2d 530) (2002) (even assuming that a legal principle, which pertained to defendant’s sole defense, was in issue, the failure to specifically charge on that principle did not require reversal because the defendant’s defense was nevertheless fairly presented to the jury).

        White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997) (citations omitted).

       See Warren v. State, 314 Ga.App. 477, 480 (2) (a) (724 SE2d 404) (2012) (concluding that the trial court did not abuse its discretion in denying motion for mistrial, where the witness did not answer the question and, upon objection, the prosecutor withdrew the question and the trial court instructed the jury to disregard it); Berry v. State, 210 Ga.App. 789, 791 (4) (437 SE2d 630) (1993) (concluding that an unanswered question did not furnish grounds for a mistrial); Middlebrooks v. State, 169 Ga. App. 507, 509 (313 SE2d 764) (1984).

       (“Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.”). See O’Neal v. State, 288 Ga. 219, 220-222 (1) (702 SE2d 288) (2010) (explaining that the plain language of OCGA § 17-8-75 refers to trial court’s independent duty, after defense counsel’s objection, to rebuke the prosecutor, give an appropriate curative instruction, or grant a mistrial in the event that the prosecutor has injected into the case prejudicial statements on matters outside of the evidence).

        O’Neal, supra at 223 (2) (citations and punctuation omitted).

        Arrington v. State, 286 Ga. 335, 346 (16) (a) (687 SE2d 438) (2009); see Collins v. State, 289 Ga. 666, 668 (2) (715 SE2d 136) (2011) (“Despite the improper questioning by the prosecutor, reversal of the conviction is not warranted, where there is overwhelming evidence of guilt or overwhelming evidence refuting the defendant’s claim of [an affirmative defense].”) (citations omitted); O’Neal, supra.

       See Collins, supra at 667-669 (holding that, while the prosecutor’s question was improper, in light of the overwhelming evidence, there was no reversible error in the denial of defendant’s motion for mistrial); see also O’Neal, supra; Arrington, supra.

       266 Ga. App. 221, 223-224 (2) (596 SE2d 651) (2004) (reversing conviction, where testimony elicited by the prosecutor amounted to irrelevant and prejudicial hearsay, where the trial court made an inappropriate remark concerning the testimony, where the trial court failed to perform the duties imposed by OCGA § 17-8-75, and where the evidence was “far from overwhelming”).

       308 Ga. App. 731, 735-736 (2) (708 SE2d 638) (2011) (physical precedent only). See Court of Appeals Rule 33 (a) (concerning divisions that are physical precedent only).