source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A15A1139.
    SILVEY v. THE STATE.
    (780 SE2d 708)
   McMillian, Judge.

After a Morgan County jury convicted Christopher Gerald Silvey on two counts of burglary, the trial court denied his motion for new trial. Silvey now appeals the denial of that motion, asserting that the trial court erred in admitting improper evidence of other acts and improper bolstering evidence. He also contends that he received ineffective assistance of counsel both during the plea process and at trial.

Viewed in the light most favorable to support the verdict, the evidence at trial showed that Silvey participated in two burglaries in Morgan County in October 2011. On October 11, 2011, when Kevin Meeler went to the Morgan County home of his friend, Holly Shaifer, he noticed an unfamiliar car in the driveway, a maroon Toyota Camry, with a man sitting in the passenger seat. Meeler knocked on the door of the house and rang the doorbell, but no one answered. Then as he began to back his car out of the driveway, he saw a man with “blondish colored hair” he did not recognize walking from behind the Shaifers’ garage. Meeler pulled back into the driveway and asked the man what he was doing. The man first told him that his car was running hot and that he and the other man were looking for water. He then told Meeler that when they stopped the car, their dog, a black and white terrier, jumped out of the car window, and they were looking for it. Meeler wrote down the car’s license tag number, told the men to leave, and then notified the police and the Shaifers.

An officer from the Madison Police Department responded to the call after the maroon car had already left. He checked the exterior of the house for signs of a break-in but found nothing out of place. Holly Shaifer arrived home later, but she did not notice anything missing inside her house. However, she did not check a jewelry box that she kept in the bathroom, which held her “nice . . . more sentimental” jewelry. Approximately one month later, at the request of police, Shaifer did a more thorough check and noticed that jewelry she kept in that box was missing.

The license plate number that Meeler wrote down was later traced back to Silvey’s mother. At trial, Silvey’s co-defendant Jamie Lyn Webb testified that he was the man sitting in the passenger seat of that car when Meeler arrived, and Silvey was the man who emerged from behind the garage to speak with Meeler. Webb said that Silvey had entered the Shaifers’ house while he sat outside, and when Silvey got back in the car, he pulled a bundle of gold jewelry out of his pocket. The men sold some of the jewelry for cash the same day.

Nine days after the incident at the Shaifers’ house, Lori Ghann went home during her lunch break. When she arrived, she saw a “reddish burgundy” car, with the hood up, parked in her carport next to her water spigot. A dark-haired man of average height was looking under the hood, and as she pulled in the driveway, he approached the car to tell her that he had stopped to get some water because his car had been running hot. Ghann then noticed a man inside her house through the kitchen window. As she began backing out of her driveway, the first man said their dog had jumped out of the car window and the other man was looking for it. As Ghann called 911, she saw the other man come around the front of her house; Ghann described him as blonde and a little older and taller than the first man. As she was talking on the phone, the men pulled up beside her. The blonde man told her that they did not mean to scare her, but Ghann told him that she had seen him inside her house. The man denied it and then drove off.

Webb testified at trial that Silvey and he were the men at Ghann’s home that day, and Silvey was driving the same Toyota Camry he drove to the Shaifers’ house. Webb was the man outside under the hood of the car when Ghann drove up, and Silvey was inside the house. He said that Silvey had only been in the house a couple of minutes when Ghann arrived.

Webb further testified that Silvey and he committed burglaries to get money to buy drugs. These burglaries began after he asked Silvey where he got his money, and Silvey replied that he had been committing burglaries to raise cash. Webb joined him for the first time on the Shaifer burglary. He said that Silvey usually drove the maroon Toyota Camry, picked out the locations for the burglaries, and broke into the houses using a plastic grocery store card to manipulate the locks, while Webb waited outside. After the burglaries, they sold the valuables they stole for cash.

When questioned by police near the time of the Shaifer burglary, Meeler was unable to pick Silvey from a photographic lineup, and neither Ghann nor Meeler could identify him at trial. To establish identity, the State presented photographs and testimony reflecting that near the time of the Morgan County burglaries, Silvey had longer, lighter hair than he did at trial. Webb testified, for example, that Silvey was eight or nine years older than him and, at the time of the trial, was heavier, more clean shaven, and had shorter hair than at the time of the Morgan County burglaries. Another witness testified that at the time of their arrests, Silvey had “dirty blonde” hair and was two inches taller than Webb.

Additionally, the State presented evidence of Silvey’s arrest in connection with a third burglary, which took place in Greene County. Webb was arrested first in connection with two unrelated Greene County burglaries. Afterward, he cooperated with the Greene County Sheriff’s Office by showing investigators the residences he had burglarized alone, residences he had burglarized with Silvey, and residences he said Silvey had identified as places he had burglarized alone in Morgan, Greene, and Putnam Counties. During the investigation into these burglaries, an investigator discovered that Silvey had pawned a Greene County High School class ring belonging to Tyrone Janes (the “Class Ring”), who lived at one of the Greene County burglary sites that Webb claimed Silvey had admitted burglarizing alone (the “Janes burglary”). The State further introduced a copy of the pawn ticket for the ring, which contained Silvey’s name and identifying information (the “Pawn Ticket”).

The State also played a video of Silvey’s interview with police. During that interview, Silvey denied any involvement in the Morgan County burglaries but admitted that he had been in Morgan County on two occasions looking for his dog, a black and white terrier. He said it was possible, therefore, that someone might be able to pick his picture out of a lineup in connection with that circumstance. After Silvey was convicted of the two Morgan County burglaries and his motion for new trial was denied, this appeal followed.

1. Silvey asserts that the trial court erred in allowing evidence of the Janes burglary under OCGA § 24-4-404 (b) of Georgia’s new Evidence Code. Under the new Code, “[a] trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.” State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015).

In determining the admissibility of other acts evidence, our Supreme Court has adopted the test set out by the Eleventh Circuit Court of Appeals.

Under this test, in order to be admissible, the State must make a showing that: (1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant’s character, see Rule 404 (b); (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question. In no case may evidence of other acts be admitted for the sole purpose of proving the character of the accused to show that he acted in conformity therewith. See OCGA § 24-4-404 (b).

(Citations omitted.) Jones, 297 Ga. at 158-59 (1). See also Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).

(a) Applying the test in this case, we note that the trial court admitted the evidence of the Janes burglary to show intent and identity. Under the first prong of the test, our Supreme Court has adopted the following federal analysis for the issue of intent:

[A] defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying Rule 404 (b) evidence absent affirmative steps by the defendant to remove intent as an issue. Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses. Thus, where the state of mind required for the charged and extrinsic offenses is the same, the first prong of the Rule 404 (b) test is satisfied.

(Citation and punctuation omitted.) Bradshaw, 296 Ga. at 656-57 (3).

Silvey pled not guilty to the charges in this case, thus making intent a material issue, and he failed to take affirmative steps to remove the issue from the case. See United States v. Williford, 764 F2d 1493, 1498 (11th Cir. 1985) (discussing the use of a stipulation to remove issue of intent from case). Although Silvey argues that his defense denying that he was involved in the burglaries removed the element of intent from the case, the Eleventh Circuit has consistently rejected such an argument. See, e.g., United States v. Cardenas, 895 F2d 1338, 1342 (II) (A) (11th Cir. 1990) (where “there is no indication in the record that defendant would have conceded his intent to participate in the [crime] if the government proved that he was involved,” issue of intent remains in case); United States v. Nahoom, 791 F2d 841, 845 (II) (11th Cir. 1986) (rejecting argument that denial of involvement in crime removes issue of intent from the case); United States v. Russo, 717 F2d 545, 552 (C) (11th Cir. 1983) (per curiam) (“mere denial of participation in [an offense] is insufficient to remove the issue of intent from the case”); United States v. Holman, 680 F2d 1340, 1349 (II) (B) (11th Cir. 1982) (unequivocal denials of participation in the crime along with representations that defendant would not actively dispute the existence of intent were insufficient to remove the issue of intent from the case). Thus, intent remained a material issue at trial.

Because Silvey’s actions in committing the Janes burglary and pawning the Class Ring involved the same mental state as burglarizing a house to obtain gold jewelry to sell for cash, the evidence from the Janes burglary was relevant to establish intent. See Bradshaw, 296 Ga. at 657 (3).

(b) In addressing the second prong of the test, we apply the balancing test under OCGA § 24-4-403, which provides that “[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The Eleventh Circuit previously has determined that “Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.” (Citation and punctuation omitted.) United States v. Merrill, 513 F3d 1293, 1301 (II) (11th Cir. 2008). See also Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 120-21 (3d ed. 2015) (“Rule 404 (b) is one of inclusion which allows extrinsic evidence unless it tends to prove only criminal propensity.”). Here, we find no clear abuse of the trial court’s discretion in determining that the evidence was more probative as to Silvey’s intent than prejudicial.

(c) Under the third prong of the test, “there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the [other] act(s) in question.” United States v. Edouard, 485 F3d 1324, 1344 (II) (C) (11th Cir. 2007). See also Bradshaw, 296 Ga. at 658 (3). Here, the Greene County investigator testified that Webb told him that Silvey had admitted burglarizing a home on the street where Janes lived. Moreover, the Pawn Ticket containing Silvey’s information and the owner’s testimony that he checked the state-issued ID of the individual who pawned the Class Ring provided sufficient proof for the jury to find by a preponderance of the evidence that Silvey was the individual involved.

Accordingly, we find no clear abuse of discretion in the trial court’s admission of the evidence from the Janes burglary.

2. Silvey also contends that the trial court erred in allowing the Greene County investigator to testify to prior statements made by Webb and Ghann, which Silvey argues improperly bolstered the credibility of those witnesses.

Under OCGA § 24-8-801 (d) (1) (A), a prior out-of-court statement by a witness

shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under [OCGA §] 24-6-613 or is otherwise admissible under [Title 24, Chapter 8].

And under OCGA § 24-6-613 (c),

[a] prior consistent statement shall be admissible to rehabilitate a witness if the prior consistent statement logically rebuts an attack made on the witness’s credibility. A general attack on a witness’s credibility with evidence offered under [OCGA §] 24-6-608 or 24-6-609 shall not permit rehabilitation under this subsection. If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose.

Although OCGA § 24-6-613 (a) and (b) generally follow the comparable federal rule, subsection (c) represents a codification of existing Georgia law on prior consistent statements, as set out in cases such as Woodard v. State, 269 Ga. 317, 320 (496 SE2d 896) (1998), overruled on other grounds by Bunn v. State, 291 Ga. 183 (728 SE2d 569) (2012). See also Cowart v. State, 294 Ga. 333, 339-40 (4) (a), n.10 (751 SE2d 399) (2013); Carlson, supra at 333.

Our Supreme Court has explained that “[a] witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” (Citation omitted.) Cowart, 294 Ga. at 339-40 (4) (a). Where such an attack occurs, “evidence is admissible that [the witness] told the same story before the motive or influence came into existence or before the time of the alleged recent fabrication. In those circumstances, the prior consistent statement is defined as not hearsay and thus is admitted into evidence.” (Citation and punctuation omitted; emphasis in original.) Id. In the absence of such an affirmative attack, any prior statement by that witness “is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury.” (Citation omitted.) Id. at 340 (4) (a). Moreover, if the prior statement is made after the motive or influence came into existence, “proof of the statement does not assist the jury to evaluate the witness’s testimony because the reliability of the statement is subject to the same doubt as the trial testimony.” (Citation and punctuation omitted.) Id.

(a) Webb’s prior statement — Silvey asserts that the trial court erred in admitting the following testimony by the investigator:

When we were doing the ride-along, [Webb] had pointed out. . . there [were] burglaries that [Webb] did on his own that he admitted to and then there were burglaries that he stated that he and Mr. Silvey did together and then he stated that Mr. Silvey had done some burglaries on his own and had told him about them.

Silvey’s counsel objected on the ground that this testimony was hearsay, bolstering, and character evidence, which the trial court overruled. We review that ruling for an abuse of discretion. Kidd v. State, 292 Ga. 259, 261 (2) (736 SE2d 377) (2013).

On appeal, Silvey does not dispute that his attorney questioned Webb’s credibility and raised issues of improper motive during its cross-examination of Webb, and the record demonstrates that Sil-vey’s attorney, in fact, led off his cross-examination of Webb by questioning his motives for testifying and attacked his credibility throughout. Specifically, Silvey’s attorney elicited testimony that Webb had rejected a plea deal with the hope that the State would offer a better one if he cooperated and testified at Silvey’s trial.

However, Silvey argues that Webb’s statement did not predate his improper motive of wanting to lessen his own culpability, which Silvey asserts arose when Webb’s house was searched and he was arrested for burglary. In support of this argument, Silvey points to Webb’s testimony on cross-examination during which he admitted initially lying to police at the time they searched the house to avoid getting into trouble, as well as Webb’s testimony admitting that he lied to his probation officers about improper activities he engaged in to avoid going to jail.

Pretermitting whether the trial court erred in overruling Silvey’s objection, we find no basis for reversal on this ground. To obtain a reversal based on an improperly admitted prior consistent statement requires harmful error. See OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affectedf.]”). “The improper admission of bolstering evidence is a non-constitutional, evidentiary error, so we must determine whether it is ‘highly probable’ that the error did not contribute to the jury’s guilty verdict.” Cowart, 294 Ga. at 341 (4) (b). And in analyzing the issue, “we may not rely on the fact that [Webb] gave testimony at trial that was consistent with the prior statement that should not have been introduced, as the very nature of the error in admitting the prior consistent statement is that it is repetitive of that to which the witness has already testified.” (Citation and punctuation omitted.) Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009). “In other words, we cannot look to [the witness’s] improperly bolstered testimony to show that the bolstering error was harmless.” (Citation and punctuation omitted.) Cowart, 294 Ga. at 341-42 (4) (b). “Instead, in determining the harmfulness of the statements’ admission ... , we must consider factors such as whether the state’s case was based primarily on the bolstered testimony, and whether the improper bolstering added critical weight to that testimony.” (Citations omitted.) Williams v. State, 327 Ga. App. 283, 287 (3) (b) (758 SE2d 620) (2014).

It is undisputed that the State’s case was based primarily on Webb’s testimony and the investigator’s disputed testimony does repeat some of the statements made by Webb in his testimony. However, the disputed testimony is only general in nature, noting only that Webb admitted committing some burglaries alone and stated that Silvey and he committed burglaries together and that Silvey had admitted committing some burglaries alone. In contrast, over and above the testimony that was consistent with these generalized statements, Webb provided testimony regarding the events of the Shaifer and Ghann burglaries that was consistent with the testimony of Meeler and Ghann in describing those events. Webb also gave additional detailed testimony regarding the crimes in this case, explaining how Silvey chose the burglary locations; how they concocted the story about the overheated car and the dog if they had to explain their presence at a burglary scene; how Silvey used a credit card to break into the houses; how they used a magnet to separate the gold j ewelry from the costume j ewelry; and how they sold the gold and other items stolen in the burglaries. Accordingly, even though the State relied heavily on Webb’s testimony, we find that the investigator’s testimony did not give critical weight to that testimony.

Moreover, putting Webb’s testimony aside, other evidence linked Silvey to the two Morgan County burglaries. Although Webb provided the only direct evidence linking Silvey to the crimes, the State presented other substantial circumstantial evidence of Silvey’s participation in the crimes. The car at the Shaifer burglary was traced back to Silvey’s mother and a similar car was used in the Ghann burglary; Silvey admitted to police that he had been to Morgan County twice to look for his black and white terrier and thus someone there might be able to pick him out of a photo lineup; and Silvey pawned stolen jewelry from one of the Greene County burglaries. Under these circumstances, we find it highly probable that the investigator’s generalized testimony regarding the ride-alongs, even if improperly admitted, did not contribute to the jury’s verdict.

(b) Ghann’s prior statement — Silvey also asserts that the trial court erred in allowing the investigator to testify regarding Ghann’s statement about finding two men at her house during her lunch break. Silvey’s counsel objected to such testimony as bolstering, and the trial court overruled the objection.

Even if the trial court erred in admitting this testimony, we find that any such error was harmless. The investigator’s testimony recounted Ghann’s statement that she had come home and found two young men and a maroon car in her driveway. She saw someone in the house and a young man outside, who told Ghann that their car had overheated; then the other man came out, and she described what happened thereafter. Ghann never identified Silvey as one of the two men, either to the investigator before trial or at trial, and the investigator did not recount any description that Ghann gave of the men involved.

During the cross-examination of Ghann, Silvey’s counsel confirmed that Ghann could not identify the men she saw at her house that day, nor could she positively identify Silvey’s car as the car she saw in her driveway. Otherwise, his counsel repeatedly questioned Ghann about whether she had ever told police about the hair color of the men involved prior to the eve of trial. During closing argument, Silvey’s counsel asserted that Silvey did not fit the description of the taller, blonde man Ghann described and suggested that her testimony regarding the men’s hair color had been recently orchestrated by the prosecution.

But at no time did Silvey dispute Ghann’s description of the events as recounted by the investigator at trial. Silvey’s defense was not based on a claim that the incident did not happen in the manner Ghann described but rather on a claim that he was not the man described by Ghann. Thus, because the facts set out in Ghann’s statement as recited by the investigator were not in dispute, we find that it is highly probable that the admission of Ghann’s prior consistent statement, even if erroneous, did not contribute to the jury’s guilty verdict.

3. Silvey also contends that he received ineffective assistance of counsel during the plea process and at trial.

(a) Plea Process — Silvey asserts that his trial counsel (“Trial Counsel”) was ineffective for failing to adequately advise him about whether to accept the State’s plea offer or to go to trial. To establish his claim of ineffective assistance of counsel in the context of a plea bargain, Silvey must establish “that his counsel’s representation fell below an objective standard of reasonableness and that the outcome of the plea process would have been different with competent advice. Lafler v. Cooper, _ U.S. _ (II) (A), (B) (132 SCt 1376, 182 LE2d 398) (2012).” (Punctuation omitted.) Cruz v. State, 315 Ga. App. 843, 845 (1) (729 SE2d 9) (2012). “In regard to the offer of a plea bargain, objective professional standards require that a defendant be told that such an offer has been made and to be advised of the consequences of the choices confronting the defendant.” (Citation omitted.) Dulcio v. State, 292 Ga. 645, 652 (3) (f) (740 SE2d 574) (2013). Therefore, “[t]rial counsel can be found to have rendered less than reasonably professional assistance if counsel has not informed his client of a plea offer and advised him of the relative consequences of accepting the offer versus going to trial.” State v. Lexie, 331 Ga. App. 400, 402 (771 SE2d 97) (2015).

In determining whether a defendant has been prejudiced by counsel’s failure to communicate those choices accurately, we must examine the facts of each case to determine whether there is at least an inference from the evidence that defendant would have accepted the offer as made or something similar.

(Citation and punctuation omitted.) Biggins v. State, 322 Ga. App. 286, 290 (3) (a) (744 SE2d 811) (2013). Georgia courts “also have recognized the ‘self-serving nature of a defendant’s post-conviction testimony regarding his intent with respect to a plea offer, and have required some further “objective evidence” that defendant would have accepted a plea offer.’ ” (Citation and punctuation omitted.) Id. Moreover, we note that “[a] defendant is entitled not to perfect representation but to reasonably effective assistance.” Turner v. State, 246 Ga. App. 49, 57 (6) (539 SE2d 553) (2000).

Here, Silvey asserts that Trial Counsel never gave him enough information to knowingly and voluntarily consider the State’s plea offer. The record demonstrates that at the OCGA § 24-4-404 (b) hearing, the trial court put on the record the State’s global offer to settle all the charges in Morgan, Greene, and Putnam Counties for a sentence of twenty years to serve, with the first ten in confinement and the remainder on probation, along with fines and restitution. The trial court informed Silvey that his exposure was 40 years on the burglary charges and then gave him the opportunity to speak with his counsel about the offer. At the two hearings held on the motion for new trial (the “Motion hearing”), Trial Counsel estimated that Silvey and he discussed the plea offer for 30 minutes during the recess in the OCGA § 24-4-404 (b) hearing.

Trial Counsel further testified that he had a number of discussions with Silvey about the State’s offer, although he could not remember if the conversations were in person or over the phone. Trial Counsel said he told Silvey about the terms of the State’s offer, that he faced a potential sentence of 40 years on the Morgan County burglaries, and that the witnesses against him were going to be “upstanding citizens ... probably known by some people on the jury.” Trial Counsel also recalled going over the discovery with Silvey, and the State introduced a composition notebook filled with Silvey’s notes on the cases, which Trial Counsel stated he reviewed and discussed with Silvey.

Silvey testified at the Motion hearing that the first time he met Trial Counsel was the day of the OCGA § 24-4-404 (b) hearing, which was held the day before trial, and they did not discuss his case until after he had already turned down the plea offer. Silvey said he was unaware that his license tag had been identified at one of the burglaries, and he did not know the State would play the video of his interrogation although he was aware the video existed. However, Silvey conceded that Trial Counsel told him that the State’s offer was for all 12 pending burglary counts in Morgan, Greene, and Putnam Counties. Silvey also acknowledged that he had heard the testimony of Shaifer, Ghann, Meeler, and the Madison police before trial at a probation revocation hearing where his probation was revoked for committing the Morgan County burglaries, and thus, he “had a good idea” of how the evidence was going to come out. But he asserted that Trial Counsel never discussed the significance of that evidence with him.

We find that the evidence from the Motion hearing supports a finding that Trial Counsel adequately discussed and explained the State’s plea offer and the consequences of rejecting it. Although Silvey contradicted his attorney’s testimony regarding their discussions, “[w]hen considering claims of ineffectiveness of counsel, the trial judge determines witness credibility and is not required to accept the defendant’s version of events.” (Citation and punctuation omitted.) Ansley v. State, 325 Ga. App. 226, 235 (4) (a) (750 SE2d 484) (2013). Moreover, the trial court put the State’s offer on the record and Silvey was informed that he could receive 40 years on the Morgan County burglaries, yet he chose to proceed to trial.

Under these circumstances, we find that Silvey has failed to establish that he received ineffective assistance of counsel in connection with the State’s plea offer.

(b) Trial — Silvey also asserts that Trial Counsel’s performance was deficient during trial because he failed to object during the State’s closing argument and to Webb’s testimony about other burglaries that Webb had committed.

In order to prevail on a claim of ineffective assistance of counsel, 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. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. 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 Court.

(Citation omitted.) Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014).

(i) Silvey asserts that his attorney was ineffective in failing to raise a contemporaneous objection when the State referenced facts not in evidence during closing argument. During the State’s closing, the prosecutor stated that neither her co-counsel nor she had promised anything to Webb in exchange for his testimony,

and even more importantly, he’s been promised nothing by the ... jurisdiction outside this circuit who he also has cases that he acknowledged. We don’t have any control over what, you know, Taliaferro County does or whatever the other counties are, Walton, whatever he said. We don’t have any control over them.

The record demonstrates that Trial Counsel, in fact, objected to this argument on the ground that Webb had not testified about being in other jurisdictions. After argument from counsel, the trial court denied the objection. Silvey argues that his attorney waited approximately one minute before raising this objection, and if he had raised it in a timely fashion, “the lower court should have sustained [it].” However, the record demonstrates that the trial court denied the objection on its merits, not on its timing. Therefore, Silvey cannot establish that Trial Counsel’s performance was deficient in this regard.

(ii) Silvey also contends that Trial Counsel was deficient in failing to contemporaneously object to the portion of the State’s closing argument suggesting that Silvey intentionally changed his appearance for trial by cutting his hair and shaving his facial hair, noting, “If identity is the issue you plan to argue at trial, isn’t it in your best interest to look as different as you possibly can at trial? I submit to you that’s really the question you should be asking here.”

Once again, Trial Counsel objected to this argument and even requested a mistrial, asserting that his client was in prison and thus had no choice as to his hair style. Although Silvey contends that the objection was untimely, the trial court considered the objection on its merits and overruled it, finding that Silvey’s attorney had opened the door to this argument when he attacked the prosecution by suggesting that they had orchestrated Ghann’s description of the men at her house. Accordingly, Silvey has failed to show that he received ineffective assistance of counsel on this ground.

Alternatively, Silvey asserts that the trial court erred in denying his counsel’s objection. However,

[t]he permissible range of closing argument... is very wide. A prosecutor is granted wide latitude in the conduct of closing argument, the bounds of which are in the triál court’s discretion; within the scope of such latitude is the prosecutor’s ability to argue reasonable inferences from the evidence, including any that address the credibility of witnesses.

(Citation and punctuation omitted.) Lamar v. State, 297 Ga. 89, 93 (3) (772 SE2d 636) (2015). See also Varner v. State, 285 Ga. 300, 301 (2) (c) (676 SE2d 189) (2009) (counsel have “ ‘wide leeway ... to argue all reasonable inferences that may be drawn from the evidence during closing argument’ ”) (citations omitted). “Requests to limit the scope of closing argument are addressed to the sound discretion of the trial court, and the trial court’s resolution of such matters will not be reversed on appeal absent an abuse of that discretion.” Smith v. State, 284 Ga. 599, 602 (2) (a) (669 SE2d 98) (2008).

Here, the record indicates that Silvey’s appearance had changed between the time of the Morgan County burglaries and trial; he had trimmed his hair very short, and it appeared darker than at the time of the burglaries. His face was devoid of facial hair, although he previously had worn a goatee. Although Silvey argues that he had no control over his appearance because he was in prison, the prison regulations he introduced at the Motion hearing indicate that he was allowed to wear his hair up to three inches long on top. And even though the regulations prevented him from wearing a goatee, they allowed mustaches of a prescribed length. The State’s argument that Silvey had intentionally changed his appearance to make identification more difficult was a reasonable inference from the evidence, and we find no abuse of discretion by the trial court in overruling Silvey’s objection and denying his request for a mistrial. See Lamar, 297 Ga. at 93 (3); Varner, 285 Ga. at 301 (2) (c).

Decided November 20, 2015

Reconsideration denied December 16, 2015.

Margaret E. Flynt, for appellant.

(iii) Silvey further argues that Trial Counsel was ineffective when he failed to object when the State elicited testimony that Silvey contends raised an inference he was involved in 12 other burglaries. In the cited testimony, Webb admitted that he committed the fourteen burglaries with which he was charged, and only committed two of them alone, but he never testified that Silvey was involved in the other twelve burglaries. Silvey asserts that this evidence nevertheless violated the trial court’s ruling at the OCGA § 24-4-404 (b) hearing excluding evidence of the two Putnam County burglaries, because the jury could only conclude from the testimony, and the fact that Webb never testified that he committed burglaries with anyone else, that Silvey was involved in all the burglaries that Webb did not commit alone.

At the Motion hearing, Trial Counsel testified that he did not object because the inference he drew from this evidence was that Webb had been committing burglaries all over the State. He did not think that the testimony hurt Silvey, noting that Webb never testified that Silvey was the only person with whom he ever committed burglaries and that he believed no such inference arose at trial.

“Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Brown v. State, 321 Ga. App. 765, 767 (1) (743 SE2d 452) (2013). “[T]he making of objections falls within the realm of trial tactics and strategy and thus usually provides no basis for reversal of a conviction.” (Citations and punctuation omitted.) Moon v. State, 288 Ga. 508, 516 (9) (705 SE2d 649) (2011). Here, Trial Counsel’s strategic decision not to object to this testimony was not so patently unreasonable that it amounted to deficient performance, and thus Silvey failed to prove ineffective assistance of counsel on this ground.

Judgment affirmed.

Barnes, P. J., concurs. Ray, J., concurs fully in Divisions 1,2 (b), 3 (a) and 3 (b) (i) and (iii) and concurs in judgment only as to Divisions 2 (a) and 3 (b) (ii).

Frederic D. Bright, District Attorney, Allison T. Mauldin, Stephen A. Bradley, Assistant District Attorneys, for appellee.

       Each burglary count was charged under a separate indictment, but the two counts were joined for trial.

       We use the term “other acts” as defined and adopted by the Supreme Court to refer to evidence admitted pursuant to OCGA § 24-4-404 (b). State v. Jones, 297 Ga. 156, 158 (1), n.1 (773 SE2d 170) (2015).

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

       The Shaifer and Ghann burglaries will be referred to collectively herein as the “Morgan County burglaries.”

       Janes was unaware that his ring was missing until he was contacted by police. He subsequently discovered that not only was his class ring gone, hut a gold nugget ring and a silver necklace were also missing.

       Because Silvey was tried in April 2013, Georgia’s new Evidence Code applies in this case. See Ga. L. 2011, p. 99, § 101 (new Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

       When Georgia courts consider the meaning of the new Code provisions closely modeled after the federal rules, such as OCGA § 24-4-404 (b), they look to decisions of the federal appeals courts construing and applying the applicable Federal Rules, especially the decisions of the Eleventh Circuit. See Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015).

       As we have found that the evidence was relevant to establish intent, we need not analyze whether the evidence was also admissible on the issue of identity. See Bradshaw, 296 Ga. at 656-57 (3) (analyzing only issues of intent and motive where Rule 404 (b) evidence admitted to show intent, motive, and identity); Logan-Goodlaw v. State, 331 Ga. App. 671, 675 (2), n.2 (770 SE2d 899) (2015) (physical precedent only).

       See Fed. R. Evid. 613 (a) and (b).

       We note, however, that Webb testified that he had been charged with burglaries that did not occur in the same circuit as the Morgan County burglaries.


author: PHIPPS, Presiding Judge.

text:
    A15A1157.
    A15A1158.
    A15A1159.
    A15A1160.
    A15A1161.
    A15A1162.
    A15A1163.
    A15A1164.
    A15A1165.
    A15A1349.
    A15A1404.
    PLIVA, INC. v. DEMENT. GOLD STANDARD, INC. v. DEMENT. WOLTERS KLUWER HEALTH, INC. v. DEMENT. TEVA PHARMACEUTICALS USA, INC. v. DEMENT. DEMENT v. PLIVA, INC. et al.
    DEMENT v. ALAVEN PHARMACEUTICAL, LLC et al. PLIVA, INC. v. TANNER. TANNER v. WYETH LLC et al. TANNER v. PLIVA, INC. et al. WOLTERS KLUWER HEALTH, INC. v. TANNER. GENERICS BIDCO I, LLC v. DEMENT.
    (780 SE2d 735)
   PHIPPS, Presiding Judge.

These cases, which we have consolidated for the purposes of deciding the appeals, concern claims related to the prescription drug metoclopramide (brand name “Reglan”). Angela Dement and Dorothy Tanner allegedly developed a neurological condition, tardive dyskinesia, after taking generic versions of the drug; Dement used the drug from February 2008 to June 2009, and Tanner used it from August 2004 to December 2004.

Each of the plaintiffs filed an action against multiple defendants, including three companies that manufactured a generic version of the drug (PLIVA, Inc., Generics Bidco I, LLC, and Teva Pharmaceuticals USA, Inc., hereinafter collectively referred to as the “generic drug manufacturers”), four companies that manufactured the name brand version of the drug (Alaven Pharmaceutical, LLC, Wyeth LLC, Wyeth Pharmaceuticals, Inc., and Schwarz Pharma, Inc., hereinafter collectively referred to as the “name-brand drug manufacturers”), and two companies that authored patient education materials pertaining to the drug (Wolters Kluwer Health, Inc. and Gold Standard, Inc.).

In the complaints, the plaintiffs asserted claims against the defendants in connection with allegedly inadequate warnings based on, inter alia, negligence, misrepresentation, and breach of warranty. The plaintiffs sought damages for injuries resulting from alleged violations of federal law and breaches of common law duties; the plaintiffs’ allegations included the following: the generic drug manufacturers failed to include in their package labeling warnings that the drug should not be taken for more than 12 weeks, failed to timely update the labeling to include such warnings, and failed to communicate warning label change information to the healthcare community; the name brand drug manufacturers distributed the drug without disclosing warnings or accurate information about the risks of long-term use; and the authors of patient education materials provided misleading drug information to the plaintiffs’ pharmacies (for patient use). Various defendants filed motions to dismiss, for summary judgment, and for judgment on the pleadings, which, as detailed below, the trial court granted in part and denied in part. These appeals are from the trial court’s rulings on those motions.

GRANT OF GENERIC DRUG MANUFACTURERS’ MOTIONS TO DISMISS

Case No. A15A1161. Dement v. PLTVA, Inc. et al.

1. The generic drug manufacturers moved to dismiss the plaintiffs’ claims against them, asserting that all of the claims were barred by the principle of federal preemption, as stated by the United States Supreme Court in PLTVA v. Mensing. , The trial court agreed in part, and granted the motions to dismiss (as preempted by federal law) those claims that were based on a “failure to warn arising under Georgia law,” failure to withdraw or suspend sales, and failure to communicate warning label change information to the healthcare community. (The court denied the motions to dismiss as to the claims for “failure to update” the labels.) Dement appeals the ruling to the extent the motions to dismiss were granted, contending that Mensing is distinguishable and does not require dismissal.

It is well established that a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.
[A] plaintiff is not required to plead in the complaint facts sufficient to set out each element of a cause of action so long as it puts the opposing party on reasonable notice of the issues that must be defended against. If within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. We review the trial court’s ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under the de novo standard of review.

In Mensing, the plaintiffs brought actions asserting against generic drug manufacturers state-law tort claims based on the defendants’ alleged failure to provide adequate warning labels for the generic drug metoclopramide. Under state laws applicable to the actions brought in Mensing, all drug manufacturers had a duty to adequately warn consumers and safely label their products. It was undisputed in Mensing that, accepting the plaintiffs’ allegations as true, state law required generic drug manufacturers to use a “different, safer” label than the name-brand manufacturers’ label. But, the Court pointed out, federal regulations require that the labels on generic drugs match the label on the name-brand counterparts, thus preventing generic drug manufacturers from independently changing their drugs’ safety labels. “[F]ederal law would permit the [generic drug manufacturers] to comply with the state labeling requirements if, and only if, the FDA [Food & Drug Administration] and the brand-name manufacturer changed the brand-name label to do so.” Thus, the Mensing Court held, the state-law claims were barred because it was impossible for generic drug manufacturers to comply with both state-law duties to adequately warn consumers and safely label their products and federal requirements that generic drug labels be the same as federally-approved labels for the name-brand drug (the federal “sameness” requirement).

The generic drug manufacturers, as defendants, bear the burden of establishing a preemption defense.

(a) Contrary to the assertion of the generic drug manufacturers in their motions to dismiss, the Mensing Court did not “[find] unequivocally that claims against generic drug companies are preempted under the Supremacy Clause of the United States Constitution.” The Mensing decision is not so broad. As the Supreme Court explained in Mutual Pharmaceutical Co. v. Bartlett, under Mensing, state-law failure to warn claims were preempted by federal law because “it was impossible for the [generic drug manufacturers] to comply with both their state-law duty to change the label and their federal law duty to keep the label the same” as the federally-approved label. Thus, under Mensing, the impossibility preemption applies to those claims involving a generic drug manufacturer’s failure to unilaterally alter its labeling to comply with state-law warning duties; Mensing does not provide generic drug manufacturers with blanket immunity against all state-law warning claims.

Dement asserted claims other than those regarding the generic drug manufacturers’ federal “sameness” duties. She alleged that the generic drug defendants also had duties under Georgia law, including the following duties: “the manufacturer of a product which, to its actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger”; and “[a] manufacturer’s failure to warn of the dangers in using a product may constitute a defect in the product for purposes of strict liability.” Dement alleged that the generic drug manufacturers violated those duties, inter alia, by failing to provide adequate warnings (which, she added, the generic drug manufacturers could have provided after the name-brand manufacturers changed their label, without violating federal “sameness” rules). Thus, the impossibility principle was not implicated as to Dement’s claims, and preemption, as set out in Mensing, does not apply. Accordingly, the trial court erred by dismissing the claims as preempted. Notably, although Georgia’s appellate courts have not decided whether state-law failure to warn claims such as those asserted by Dement are precluded under Mensing, several courts in other jurisdictions have (as we do here) declined to dismiss state-law failure to warn claims asserted against generic drug manufacturers.

(b) Similarly, Mensing does not require dismissal of Dement’s claims based on the generic drug manufacturers’ failure to suspend or withdraw sales of a misbranded drug. In her complaint as amended, Dement included allegations that the generic drug manufacturers had: placed misleading labels on their drug; failed to update the drug’s labels with the mandated 2004 label revisions; failed to disclose all known risks regarding the drug; made misleading warranties regarding the drug’s safety; concealed the drug’s defects; allowed the drug to leave their control when it was defective or unreasonably dangerous; and, despite having knowledge that the drug was unsafe, continued to sell the drug. Notably, Dement asserted in her trial brief in response to the motion to dismiss that the generic drug was misbranded because the generic drug manufacturers had failed to, inter alia, include information that they were required to include, namely the 2004 update; that Georgia law prohibits drug manufacturers from selling misbranded drugs; and that state law parallels federal law in that regard.

Although Dement did not in her complaint use the terms “mis-branded” or “failure to suspend or withdraw sales,” a court deciding a motion to dismiss a complaint must resolve all doubts in favor of the party that filed the complaint. Here, the allegations of the complaint put the generic drug manufacturers on reasonable notice of the claims at issue here. Further, as Dement contends, it was not impossible for the generic drug manufacturers to simultaneously comply with both state and federal law. Accordingly, these state-law claims asserted by Dement do not run afoul of Mensing or the cases cited in the trial court’s order (.Mutual Pharmaceutical v. Bartlett and Morris v. PLIVA ), and dismissal was not warranted.

(c) However, the trial court properly dismissed Dement’s claims based on “failure to communicate” warning label change information to the healthcare community, as those claims are preempted by federal law.

Construing the pleadings most favorably to Dement, we hold that the generic drug manufacturers failed to establish that Dement could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought as to her claims for failure to warn and failure to suspend or withdraw sales. The trial court’s judgment is reversed to the extent it holds otherwise. With regard to the claim based on an alleged failure to communicate warning label change information to the healthcare community, the judgment is affirmed.

Case No. A15A1165. Tanner v. PLIVA, Inc. et al.

2. Tanner appeals the grant of the generic drug manufacturers’ motion to dismiss, making substantively the same contentions Dement makes in Case No. A15A1161. Tanner’s complaint set forth similar allegations. For the reasons set out in Division 1 above, the trial court erred by granting the generic drug manufacturers’ motion to dismiss Tanner’s failure to warn and failure to suspend or withdraw sales claims, but properly granted the motion as to the failure to communicate claim. The judgment is reversed as to the two former claims, and affirmed as to the latter claim.

DENIAL OF GENERIC DRUG MANUFACTURERS’ MOTIONS TO DISMISS

Case No. Al 5All 57. PLIVA, Inc. v. Dement

3. In denying the generic drug manufacturers’ motions to dismiss claims based on alleged failure to update labeling to include the 2004 warning that the drug should not be taken for more than 12 weeks, the trial court found that Dement’s complaint had set forth sufficient allegations to state a claim for relief. PLIVA appeals the ruling. We affirm.

As stated above, Dement alleged that in 2004 the name-brand drug manufacturers updated the labeling of their drug to include a warning that the drug should not be used for longer than 12 weeks. PLIVA concedes that federal law requires generic drug manufacturers to duplicate verbatim the name-brand drug’s label, that PLIVA was obligated to update its packaging in '2004 to include the new warning when the name-brand drug manufacturers did, and that PLIVA failed to do so.

Nonetheless, PLIVA moved to dismiss Dement’s “failure to update” claim, arguing that it is an impermissible attempt to enforce the FDCA’s “sameness” requirement, and that the federal duty of sameness is not enforceable by private litigants. The trial court properly denied PLIVA’s motions to dismiss.

(a) First, Dement alleged in her complaint that PLIVA had a duty under Georgia common law to provide adequate warnings about its product, which PLIVA could have done by updating its labeling in 2004 (to conform to the FDA-approved and mandated revisions). Such an update was not rendered impossible by federal law. Accordingly, federal law does not preempt the claim.

(b) Second, Dement does not seek to enforce the FDCAor recover for a violation thereunder, but seeks to recover damages based on Georgia law. Thus, PLIVA’s contention presents no basis for reversal.

The trial court did not err by refusing to dismiss Dement’s failure to update claims.

Case No. A15A1160. Teva Pharmaceuticals USA, Inc. v. Dement

4. To the extent Teva raises the same arguments here that PLIVA raised in Case No. A15A1157, its arguments are likewise without merit. Insofar as Teva contends that Dement’s claim should have been dismissed because Dement took Teva’s drug only after its label had been updated, the contention presents no basis for reversal.

On a motion to dismiss for failure to state a claim, the court must accept the plaintiff’s claims as true and determine whether the complaint states a cause of action. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Because it cannot be said with certainty that within the framework of the complaint no evidence could be introduced that would support Dement’s claims for relief, the motion to dismiss was properly denied.

Case No. A15A1163. PLIVA, Inc. v. Tanner

5. PLIVA appeals the denial of its motion to dismiss Tanner’s claim based on failure to update. The order appealed is substantively the same as the one PLIVA appeals in Case No. A15A1157, and PLIVA makes substantively the same arguments. This appeal is without merit for the reasons described in Division 3.

Case No. A15A1404. Generics Bidco I, LLC v. Dement

6. Generics Bidco I, LLC appeals the trial court’s denial of its motion to dismiss, asserting the same contentions PLIVA makes in Case No. A15A1157. Those contentions are without merit, for the reasons discussed in Division 3.

Generics Bidco I asserts additionally that Dement’s claim that the generic drug manufacturers failed to timely update their labels must be dismissed as to Generics Bidco I because it did not exist as an entity until 2007, and when it entered the market its drug had updated labeling. However, that assertion goes beyond the framework of the complaint. Because it cannot be said with certainty that, within the framework of the complaint, no evidence could be introduced that would support Dement’s claims for relief, the motion to dismiss was properly denied.

GRANT OF SUMMARY JUDGMENT IN FAVOR OF NAME-BRAND DRUG MANUFACTURERS

Case No. A15A1162. Dement v. Alaven Pharmaceutical, LLC et al.

7. This court reviews the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant.

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In granting summary judgment to the name-brand drug manufacturers, the trial court held that those defendants could not be held liable because the plaintiffs had not been exposed to their products. In her challenge to the ruling, Dement contends that the name-brand drug manufacturers are strictly liable because they controlled the design and labeling of the generic drugs, or, alternatively, common law negligence claims are available; further, public policy supports such claims. There was no error.

Under Georgia law, Dement, proceeding under a theory of negligence or strict liability, must prove that the defendants manufactured or distributed the product that caused her harm, or that she was exposed to the defendants’ product. Regarding liability of a name-brand drug manufacturer to a consumer who used only a generic drug, “the overwhelming national consensus ... is that a brand-name manufacturer cannot be liable for injuries caused by the ingestion of the generic form of a product.” Because the name-brand drug manufacturers owed no duty of care to Dement, who never used their product, those defendants were entitled to judgment as a matter of law. There was no error.

Case No. A15A1164. Tanner v. Wyeth, LLC et al.

8. Tanner makes the same challenges as Dement to the grant of the name brand drug manufacturers’ summary judgment motion. Tanner’s challenge fails for the reasons set out in Division 7.

DENIAL OF PATIENT EDUCATION MATERIALS AUTHOR’S MOTION TO DISMISS

Case No. A15A1159. Wolters Kluwer Health, Inc. v. Dement

9. Wolters Kluwer Health, Inc., contends that the trial court erred by denying its amended motion to dismiss claims asserted against it. In its motion to dismiss, Wolters Kluwer Health asserted that it owed Dement no legal duty, that the First Amendment to the Constitution barred her claim, and that no privity existed between Dement and Wolters Kluwer Health. The court found the motion to be premature, stating that the motion required the court to consider matters outside the parties’ pleadings, and noted that it would consider the issues upon completion of discovery pursuant to a properly filed motion for summary judgment. There was no error.

Our Supreme Court has recently reiterated that a motion to dismiss should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof. “Therefore, the movant must establish that the plaintiff cannot possibly introduce evidence within the allegations of the complaint entitling him to the relief sought.”

Dement’s complaint includes the following pertinent allegations: Wolters Kluwer Health authored patient education materials, which pharmacists then provided to their patients; the materials included information about prescription drugs, including the drug at issue here; the drug information was typically given to patients (stapled to their prescription package) when the prescription was picked up, as it was here; Wolters Kluwer Health undertook to provide accurate drug information in the materials it authored and made available to pharmacies for their customers; Wolters Kluwer Health had knowledge that those using the drug would rely upon the information in the materials; Dement read and relied upon misstatements about the drug in the materials; and, as a result of Wolters Kluwer Health’s wrongful conduct, Dement was injured.

Inasmuch as Wolters Kluwer Health has not established that Dement cannot possibly introduce evidence within the allegations of the complaint entitling her to any of the relief sought, the court properly denied its motion to dismiss.

Case No. A15A1349. Wolters Kluwer Health, Inc. v. Tanner

10. Wolters Kluwer Health makes substantively the same contentions as to Tanner in this case that it made in Case No. A15A1159 as to Dement. The contentions made herein likewise present no basis for reversal.

DENIAL OF PATIENT EDUCATION MATERIALS AUTHOR’S MOTION FOR JUDGMENT ON THE PLEADINGS

Case No. A15A1158. Gold Standard, Inc. v. Dement

11. Gold Standard, Inc., contends that the trial court erred by denying its motion for judgment on the pleadings when Dement failed to state a claim upon which relief could be granted. Specifically, Gold Standard asserts that it owed Dement no duty of care, that there was no privity between Dement and Gold Standard, and that its right to distribute the information was protected by the First Amendment. There was no error.

A motion for judgment on the pleadings is proper where the undisputed facts that appear from the pleadings establish that the movant is entitled to judgment as a matter of law. All well-pleaded facts are to be accepted as true. . . . [T]he granting of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action [.]

Decided November 20, 2015

Reconsiderations denied December 16, 2015

Batch & Bingham, James L. Hollis, Geremy W. Gregory, for PLIVA, Inc.

Buck Law Firm, Robert C. Buck, for Dement and Tanner.

Holland & Knight, J. Allen Maines, Caroline J. Tanner, Steven A. Moulds, for Gold Standard, Inc.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Myrece R. Johnson, Lynn M. Roberson, for Wolters Kluwer Health, Inc.

Hawkins, Parnell, Thackston & Young, Michael J. Goldman, for Teva Pharmaceuticals USA, Inc.

Nelson, Mullins, Riley & Scarborough, StephenM. Brooks, Lucas A. Westby, for Alaven Pharmaceutical, LLC and Wyeth, LLC.

Weathington Smith, Paul E. Weathington, David C. Hanson, for Generics Bidco I, LLC.

Our review of the trial court’s ruling is de novo.

Accepting Dement’s well-pleaded facts as true, the complaint shows the following pertinent facts: Gold Standard authored patient education materials, which pharmacists provided to their patients; the materials included information about prescription drugs, including the drug at issue here; the drug information was typically given to patients (stapled to their prescription package) when the prescription was picked up, as it was here; Gold Standard undertook to provide accurate drug information in the materials it authored and made available to pharmacies for their customers; Gold Standard had knowledge that those using the drug would rely upon the information in the materials; Dement read and relied upon misstatements about the drug in the materials; and, as a result of Gold Standard’s wrongful conduct, Dement was injured. There is no “complete failure to state a cause of action,” and the court did not err in denying the motion.

Judgments affirmed in Case Nos. A15A1157, A15A1158, A15All 59, A15A1160, A15A1162, A15A1163, A15A1164, A15A1349 and A15A1404. Judgments affirmed in part and reversed in part in Case Nos. A15A1161 and A15A1165.

Doyle, C. J., and Boggs, J., concur.

       We granted the applications for interlocutory review in Case Nos. A15A1157 and A15A1158. We accepted the remaining appeals as permissible cross-appeals. See generally Executive Jet Sales v. Jet America, 242 Ga. 307 (248 SE2d 676) (1978).
      In Case Nos. A15A1161 and A15A1165, the plaintiffs appeal the grant of the generic drug manufacturers’ joint motion to dismiss their claims that were based on Georgia law. In Case Nos. A15A1157, A15A1160, A15A1163 and A15A1404, the generic drug manufacturers appeal the denial of their j oint motion to dismiss the plaintiffs’ claims for failure to warn based on their alleged failure to update their labels. In Case Nos. A15A1162 and A15A1164, the plaintiffs appeal the grant of summary judgment to the name brand drug manufacturers. In Case Nos. A15A1159 and A15A1349, Wolters Kluwer Health, Inc. appeals the denial of its motion to dismiss as to each plaintiff. In Case No. A15A1158, Gold Standard, Inc. appeals the denial of its motion for judgment on the pleadings as to Dement.

       564 U. S. 604 (131 SCt 2567, 180 LE2d 580) (2011).

       This ruling is discussed in Division 3, infra.

        TechBios, Inc. v. Champagne, 301 Ga. App. 592-593 (688 SE2d 378) (2009) (footnote omitted).

        Mensing, 131 SCt at 2572.

       Id. at 2577 (II) (C).

       Id. at 2573-2574 (II) (A).

       Id. at 2574 (II) (B).

       Id. at 2578 (III) (B).

       Id. at 2574-2575 (II) (B), 2577 (II) (C); 2577-2578 (III) (A).

        Wyeth v. Levine, 555 U. S. 555, 569 (III) (129 SCt 1187, 173 LE2d 51) (2009).

       (Emphasis supplied.)

       __ U. S. _ (133 SCt 2466, 186 LE2d 607) (2013).

       Id. at 133 SCt 2478-2479 (IV), (V).

        Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994) (citations and punctuation omitted).

        Pepper v. Selig Chemical Indus., 161 Ga. App. 548, 550 (3) (288 SE2d 693) (1982); OCGA § 51-1-11 (b) (1) (pertinently providing that a manufacturer is strictly liable when a consumer suffers injuries due to a product that was not merchantable and reasonably suited to the use intended).

       See, e.g., Couick v. Wyeth, Inc., 2012 U. S. Dist. LEXIS 3699, *6, 11, 14 (A); 16-19 (B) (W.D. N.C. 2012) (denying motion to dismiss state-law failure to warn and breach of warranty claims against generic drug manufacturers; holding that a state law claim for failure to include warnings was not preempted by federal law where the federal Food, Drug & Cosmetic Act (“FDCA”) would have permitted or even required such changes); Franzman v. Wyeth, Inc., 451 SW3d 676, 688-689 (C) (Mo. App. 2014) (while the alleged failure to update generic drug labels may also constitute a violation of federal law, the plaintiff’s claim was based on an independent state-law duty and was not preempted). See also Fisher v. Pelstring, 817 FSupp.2d 791, 832 (b) (D. S.C. 2012) (breach of implied warranty of merchantability under state law is not created by labeling content, and claims alleging its breach by generic drug manufacturers remain viable post-Mensing); Metz v. Wyeth, 872 FSupp.2d 1335, 1341-1342 (M.D. Fla. 2012) (implied warranty claim against generic drug manufacturers may survive preemption based on a showing that defendant knew the drug was likely to be used more than 12 weeks and implicitly warranted that it was safe and effective for such use).

       See OCGA §§ 26-3-3; 26-3-8.

       See 21 USC §§ 331 (a), 352 (a), (c), (f).

       See TechBios, Inc., supra.

       Id.

       133 SCt at 2476 (explaining that “preemption cases presume that an actor seeking to satisfy both his federal- and state-law obligations is not required to cease acting altogether in order to avoid liability”; rejecting argument that state law claims are protected from preemption because a defendant faced with a conflict between federal and state law could have opted to suspend sales of its product; a “failure to stop selling” theory of liability is incompatible with preemption jurisprudence).

       713 F3d 774, 778 (II) (“failure to stop selling claim” was preempted by federal law because “[a]ny state law-based holding that the generic [drug] manufacturers should have acted differently with respect to warnings or should have ceased manufacturing these products because of insufficient warnings not only violates the duty of sameness hut conflicts with FDA’s exclusive authority to approve drugs and drug labels”). See Lyman v. Pfizer, Inc., 2012 U. S. Dist. LEXIS 13185, *18-19 (D. Vt. 2012) (“[T]he Mensing holding does not prevent [plaintiffs] from asserting liability against the [defendants] for distributing a drug that is misbranded”; "[f]ederal law prohibits a manufacturer from introducing into commerce a misbranded drug.”).

        Mensing, supra at 131 SCt 2576 (II) (B) (federal law did not permit manufacturers to issue additional warnings through letters to physicians); Guarino v. Wyeth, LLC, 719 F3d 1245, 1249 (11th Cir. 2013) (generic drug manufacturers could not he compelled by state law to mail warnings directly to physicians); Morris, 713 F3d at 776-777 (I) (citing Mensing, holding that “duty of sameness” prohibits generic drug manufacturers from sending warning letters communicating a label change if name brand manufacturers did not also send such a warning).

       See TechBios, Inc., supra.

       See Friedlander v. HMS-PEP Products, 226 Ga. App. 123, 125-126 (2) (485 SE2d 240) (1997) (the FDCA does not provide a private right of enforcement).

       Compare Mensing, supra.

       See, e.g., Fulgenzi v. PLIVA, Inc., 711 F3d 578, 584 (III) (A) (6th Cir. 2013) (plaintiffs were not preempted under Mensing from bringing state tort claims against generic drug manufacturer for failing to update its metoclopramide label to include the 2004 warning; plaintiff could base her claim on argument that drug manufacturer’s warning was inadequate to the extent that it did not include language contained in the name-brand manufacturer’s updated label); Phelps v. Wyeth, Inc., 938 FSupp.2d 1055 (D. Ore. 2013) (allowing claims arising from PLIVA’s alleged failure to update warning label, as not arising from violations of FDCArequirements).

       See generally Chrysler Corp., supra at 724 (1) (under Georgia negligence law, a product manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses); Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671) (1994) (with respect to product manufacturers, Georgia law recognizes causes of action based on three general categories of product defect: manufacturing defects, design defects, and warning defects); McLain v. Mariner Health Care, 279 Ga. App. 410, 411-412 (2), n. 10 (631 SE2d 435) (2006) (considering federal laws and regulations when determining the appropriate standard of care for purposes of a common law negligence claim).

       Division 3, supra.

        Simmons v. Brady, 251 Ga. App. 717, 718 (1) (555 SE2d 94) (2001); see Ikomoni v. Bank of America, 330 Ga. App. 776 (769 SE2d 527) (2015).

        Ikomoni, supra.

       See id. at 778.

       Division 3, supra.

       Supra.

       Supra.

       See generally id.

        Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31 (766 SE2d 497) (2014).

       OCGA § 9-11-56 (c).

       See Hoffman v. AC&S, 248 Ga. App. 608, 610-611 (548 SE2d 379) (2001); Chapman v. American Cyanamid, Co., 861 F2d 1515, 1519-1520 (I) (11th Cir. 1988); Germain v. Teva Pharmaceuticals, USA, 756 F3d 917, 943 (4) (6th Cir. 2014) (noting that federal courts in Georgia have rejected misrepresentation claims against name-brand drug manufacturers where the plaintiffs had ingested only generic drugs, and that name-brand drug manufacturers do not owe generic drug consumers a duty that could give rise to liability under Georgia law for alleged misrepresentations); Guarino, supra at 1252-1253; Smith v. Wyeth, Inc., 657 F3d 420, 423-424 (6th Cir. 2011) (“As have the majority of courts to address the question, we reject the argument that a name-brand drug manufacturer owes a duty of care to individuals who have never taken the drug actually manufactured by that company.”).

        Guarino, supra at 1252.

       See generally Marquis Towers v. Highland Group, 265 Ga. App. 343, 345-346 (593 SE2d 903) (2004); Chrysler Corp., supra (manufacturer had the duty to warn consumers of the risks of its products).

       See generally Godwin, supra.

        Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014).

        Thomas v. Gregory, 332 Ga. App. 286, 290 (3) (772 SE2d 382) (2015) (citation omitted).

       See, e.g., Lyons v. Wyeth, Inc., 2011 U. S. Dist. LEXIS 64377, *13-14 (E.D. Mo. 2011) (claims against patient education material authors were colorable under common law theory that a defendant who undertakes to act owes a duty to act carefully); Nicely v. Wyeth, Inc., 2011 U. S. Dist. LEXIS 64380, *9 (E.D. Mo. 2011) (same); Bailey v. Pfizer, Inc., 2014 U. S. Dist. LEXIS 73671, *14 (E.D. Pa. 2014) (“[This] Court agrees with other courts that have held that the question of the applicability of the First Amendment as a defense to Plaintiffs’ claims [against Wolters Kluwer Health as authors of patient education materials plaintiffs received from their pharmacists with their prescriptions] cannot be appropriately determined in the context of a motion to remand, in the absence of any developed factual record.") (footnote omitted; emphasis supplied); Neeley v. Wolters Kluwer Health, Inc., 2013 U. S. Dist. LEXIS 106191, *44 (E.D. Mo. 2013) (First Amendment case law does not require dismissal of claims against authors of patient education materials); see generally Atlanta Affordable Housing Fund, L.P. v. Brown, 253 Ga. App. 286, 292 (3) (558 SE2d 827) (2002) (“It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”) (citation and punctuation omitted).

       Division 9, supra.

        Holland Ins. Group, LLC v. Senior Life Ins. Co., 329 Ga. App. 834, 836 (1) (766 SE2d 187) (2014); see Frady v. Irvin, 245 Ga. 307 (264 SE2d 866) (1980).

       See Ga. Farm Bureau Mut. Ins. Co. v. Croft, 322 Ga. App. 816, 817 (746 SE2d 285) (2013).

       See id.

       See Holland Ins. Group, supra. See also authority set forth in n. 46, supra, of this opinion.


author: Miller, Judge.

text:
    A15A1239.
    PASCHAL v. THE STATE.
    (780 SE2d 681)
   Miller, Judge.

Following a jury trial, Edward Paschal was convicted of armed robbery (OCGA § 16-8-41 (a)), two counts of aggravated assault (OCGA § 16-6-21 (a) (2) (2009)), burglary (OCGA § 16-7-1 (a) (2009)), two counts of false imprisonment (OCGA § 16-5-41 (a)) and two firearms offenses (OCGA § 16-11-106 and OCGA § 16-11-131 (b) (2009)) for crimes arising out of a home invasion. Paschal appeals from the denial of his motion for new trial, contending that (1) the trial court erred in admitting his 1989 convictions for armed robbery and aggravated assault as other acts evidence under OCGA § 24-4-404 (b); (2) the trial court erred in instructing the jury on the use of other acts evidence; and (3) trial counsel was ineffective in failing to object to the trial court’s jury instruction. After a thorough review of all the issues raised, we disagree with those contentions. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that, in 2009, Paschal’s friend, Jacob, decided to rob T. J. Jacob and T. J. had sold drugs together, but they had a falling out. Jacob recruited Paschal to help with the robbery, and they agreed to split the expected proceeds.

On Friday, March 20, Paschal and Jacob drove over to T. J.’s house on Haney Road in Coweta County in Paschal’s truck and watched the house for three to four hours. On March 21, 2009, Paschal went to Party City and bought “Curly” and “Moe” masks based on the characters from “The Three Stooges.” After buying the masks, Paschal and Jacob met at Jacob’s apartment.

Around 9:00 that night, Paschal and Jacob left the apartment in Paschal’s truck and drove toward T. J.’s house. Paschal was wearing a blue bandana on his face and carrying a gun. Jacob, who was driving, also had a gun. Jacob dropped off Paschal near T. J.’s house, drove into the woods where he watched the house for about 90 minutes, and then parked Paschal’s truck on J. W. Thompson Road. Around 11:00 p.m., while he was walking toward T. J.’s house, Jacob saw T. J. driving away.

Jacob, who was wearing a black hoodie and one of the masks, met back up with Paschal near T. J.’s house, and they entered the house through the unlocked front door. A few minutes later, Paschal and Jacob heard T. J. pull up so they waited inside the front door. When T. J. entered the house, Jacob pointed a pistol at him and moved toward him.

T. J. and J acob started slamming each other back and forth in the kitchen until they fell on the floor. Jacob ended up on top of T. J. and held his gun to the back of T. J.’s neck. At one point Jacob’s mask got pulled down and T. J. could see his face. Jacob hit T. J. in the back of the head with the butt of a gun, and then he put T. J. in a choke hold. T. J.’s mother then came into the kitchen and hit Jacob in the head with a lamp. Paschal grabbed the mother from behind and hit her in the head with his gun, knocking her to the floor and causing significant injuries.

Jacob and Paschal then zip-tied the victims’ hands and feet, carried T. J. upstairs and demanded money from him. T. J. gave Paschal several thousand dollars in cash. Paschal and Jacob then dragged T. J. back downstairs and demanded that T. J. give them his car keys because they believed that T. J. had more money hidden outside and they planned to drive T. J. and his mother into the woods behind T. J.’s house.

Jacob set T. J. down by the front door and went to help Paschal, who was having trouble getting the mother off the floor. Meanwhile, T. J., who believed that he was going to be killed, got up and ran out the side door to his neighbor’s house, where the neighbor called 911.

When T. J. ran to the neighbor’s house, Paschal and Jacob chased him for approximately 40 yards and then took off running in different directions. Paschal hid in the woods for a day and a half after the home invasion. The next day, when Paschal left the area where he was hiding, he encountered a sheriff’s deputy. Paschal gave the deputy a false name and refused to take his. hands out of his pockets. When the deputy took a step toward him, Paschal took off running so he could get rid of the gun used in the home invasion. The deputy and another officer chased Paschal and arrested him for loitering, prowling and obstructing an officer.

On the night of the crimes, after Paschal and Jacob stopped chasing T. J., Jacob ran up Haney Road, which connects with J. W. Thompson Road near a bridge, and he continued running until he reached a fallen tree. Jacob hid under the tree for several hours and left his Party City mask there.

On the night of the crimes, T. J. identified Jacob as one of the robbers, and, a few weeks later, T. J. found the mask J acob wore by the tree. An investigating officer also found the plastic ties used on T. J. just outside the door where T. J. exited the house when he ran to his neighbor’s, and he found a dark colored bandana on the side of Haney Road right near the area where Paschal and Jacob initially ran.

Investigators subsequently searched Jacob’s apartment where they found the tags for the “Curly” and “Moe” masks as well as the Party City receipt showing that the masks were purchased on March 21, 2009. The manager of Party City positively identified Paschal in a photo lineup as the man who came into the store to purchase the masks. Paschal was then charged with the crimes in this case.

1. Paschal contends that the trial court erred in admitting his 1989 convictions for armed robbery and aggravated assault for the limited purpose of showing his course of conduct. “A trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.” (Citations omitted.) State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015). As set forth herein, we hold that the trial court abused its discretion in admitting evidence of Paschal’s 1989 convictions because evidence of other acts is no longer admissible for the purpose of showing a defendant’s course of conduct.

Since this case was tried after January 1, 2013, Georgia’s new Evidence Code applies. See Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015). While Georgia courts routinely admitted similar transaction evidence and other acts for purposes of showing course of conduct under the old Evidence Code, the legislature, in enacting the new Evidence Code, omitted “course of conduct” as a listed purpose for which other acts maybe admitted. See OCGA § 24-4-404 (b); see also Paul S. Milich, Ga. Rules of Evidence, § 11:10 (2015-2016 ed.) (rather than permitting the admission of other acts evidence for the purpose of showing bent of mind or course of conduct, Georgia’s new Rule 404 (b) is a return to the traditional, common law justifications for admitting other acts evidence such as motive, identity, knowledge, intent, plan, opportunity, or absence of mistake or accident). Specifically, OCGA § 24-4-404 (b) of the new Evidence Code provides:

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

We note that Rule 404 (b) is a rule of inclusion that contains a nonexhaustive list of purposes for which other acts may be admitted, other than to prove character. See State v. Frost, 297 Ga. 296, 300 (773 SE2d 700), (2015). Nevertheless, the General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it. State v. Johnson, 292 Ga. 409, 412 (738 SE2d 86) (2013). Since other acts evidence was admissible to show course of conduct under the case law interpreting the old Evidence Code and the legislature omitted course of conduct as a listed purpose in enacting OCGA § 24-4-404 (b), we “discern that the absence of such language was a matter of considered choice.” (Punctuation and footnote omitted.) Gordon v. State, 316 Ga. App. 42, 46 (1) (a) (728 SE2d 720) (2012). Consequently, we hold that course of conduct is no longer a viable exception with regard to the admissibility of other acts under the new Evidence Code and the trial court abused its discretion in admitting Paschal’s 1989 convictions for that purpose. Nevertheless, we need not reverse Paschal’s convictions, because the trial court’s error in admitting Paschal’s 1989 convictions was harmless, given the overwhelming evidence of his guilt.

Notably, Jacob and Paschal planned and committed the home invasion together; Paschal owned the truck used in the crimes; Paschal purchased the Party City mask that Jacob wore during the home invasion; Paschal hid in the woods near T. J.’s house on the night of the crimes; a deputy discovered Paschal the very next day near the woods, a short distance from T. J.’s house; and Paschal gave the deputy a false name, refused to take his hands out of his pockets and then ran from the deputy so that he could get rid of the gun used in the home invasion. See Barstad v. State, 329 Ga. App. 214, 217 (1) (764 SE2d 453) (2014) (defendant’s flight is circumstantial evidence of his guilt). In light of this overwhelming evidence, it is highly probable that the evidence of Paschal’s 1989 convictions did not contribute to the jury’s verdict. See Jackson v. State, 281 Ga. 705, 706 (2) (642 SE2d 656) (2007) (admission of other acts evidence was harmless, given overwhelming evidence of defendant’s guilt); Bright v. State, 314 Ga. App. 589, 594 (1) (b) (725 SE2d 327) (2012) (highly unlikely that admission of other acts evidence contributed to verdict where there was strong evidence of defendant’s guilt).

2. Paschal also contends that the trial court reversibly erred in charging the jury that his 1989 convictions were admissible to show his course of conduct, and in sua sponte instructing the jury that it could consider evidence of his 1989 convictions to show his modus operandi. We do not agree.

Here, before the State presented this evidence, the trial court gave the jurors a limiting instruction in which the trial court prohibited them from considering the 1989 convictions for any purpose other than course of conduct and modus operandi and instructed them that they could not infer from evidence of those convictions that Paschal “[was] of a character that [he] would commit such crimes.” In its final jury instructions, the trial court repeated these same admonitions. Paschal failed to object to either of these limiting instructions. Accordingly, this Court will only review the charge for plain error. See Allen v. State, 290 Ga. 743, 744-745 (3) (723 SE2d 684) (2012).

The plain error test... authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.

(Citations and punctuation omitted.) Smith v. State, 292 Ga. 316, 319 (3) (737 SE2d 677) (2013).

Given the overwhelming evidence in this case, Paschal cannot show that the trial court’s charge on the jury’s consideration of his 1989 convictions likely affected the outcome of the proceedings. See Rouen v. State, 312 Ga. App. 8, 10 (2) (717 SE2d 519) (2011). Moreover, the trial court’s charge as given and when considered as a whole properly set forth the elements of the charged crimes, instructed the jury on the State’s burden of proof and burden to show intent, and instructed the jury that only slight evidence from another source was necessary to support Jacob’s testimony. See id. at 10-11. Accordingly, Paschal has not shown reversible error.

3. Paschal contends that his trial counsel was deficient for failing to object to the trial court’s limiting instructions regarding the admission of evidence of his 1989 convictions. We disagree.

To establish an ineffective assistance of counsel claim, [Paschal] must show that the counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). [Paschal] must show that both prongs of the Strickland test are met. Further, a strong presumption exists that the counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Ineffectiveness claims are mixed questions of law and fact. We accept the trial court’s findings of fact unless clearly erroneous and apply the law to the facts independently.

Decided November 18, 2015

Reconsideration denied December 16, 2015

Erin L. Finder, Tyler R. Conklin, for appellant.

Peter J. Skandalakis, District Attorney, Robert W. Mooradian, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Brooks v. State, 323 Ga. App. 681, 684 (2) (747 SE2d 688) (2013).

Here, defense counsel objected to the admission of Paschal’s 1989 convictions, but did not object to the trial court’s limiting instructions on this other acts evidence. Trial counsel stated that his strategy with regard to Paschal’s 1989 convictions was to focus on the dissimilarities and the 20-year time gap between the 1989 crimes and the crimes in this case. Matters of trial strategy do not support a claim of ineffective assistance. See Littlejohn v. State, 320 Ga. App. 197, 207 (5) (a) (ii) (739 SE2d 682) (2013). Moreover, in light of the overwhelming evidence, Paschal cannot show prejudice. See Ellicott v. State, 320 Ga. App. 729, 739 (6) (740 SE2d 716) (2013). Accordingly, under the circumstances in this case, Paschal has not shown that his trial counsel rendered ineffective assistance.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       See State v. Jones, 297 Ga. 156, 158 (1), n. 1 (773 SE2d 170) (2015) (adopting the Eleventh Circuit’s terminology and using the term “other acts” in reference to OCGA § 24-4-404 (b)).

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

       See Wright v. State, 296 Ga. 276, 279 (1) (766 SE2d 439) (2014); Matthews v. State, 294 Ga. 50, 52 (3) (a), n. 2 (751 SE2d 78) (2013).

       The State proffered and the trial court admitted Paschal’s 1989 convictions only for the purpose of showing course of conduct. We do not consider on appeal whether those convictions might have been admissible for other purposes such as to show proof of motive, opportunity or intent. See Kress v. State, 195 Ga. App. 519 (2) (394 SE2d 139) (1990) (this Court will not consider issues on appeal which were not raised in and ruled upon by the trial court).