author: Boggs, Judge.

text:
    A12A2385.
    HASSARD v. THE STATE.
    (738 SE2d 293)
   Boggs, Judge.

Thomas Hassard appeals from his conviction for DUI-less safe. He contends that the evidence is insufficient to sustain his conviction, that the trial court erred in considering another DUI-less safe conviction as a similar transaction and erred in denying his plea in bar on double jeopardy grounds. For the following reasons, we affirm.

Construed in favor of the verdict, the evidence showed that a woman was traveling home from work around 5:15 in the evening and stopped at a red light on Haynes Bridge Road where it intersects Old Milton Parkway in Fulton County. As she was stopped at the light, another vehicle hit her from behind. She described it as just a “bump” and that the impact caused no damage to her vehicle. As the woman called police, the driver of the other vehicle, whom she identified as Hassard, had “trouble getting out” of his vehicle. She explained that Hassard was “fidgeting and stumbling” as he got out of his vehicle and that he balanced himself by holding on to the door and the hood of his vehicle as well as her vehicle as he made his way toward her. When Hassard tapped on her window, she rolled it down slightly. Hassard asked the woman if she was “okay,” and the woman told him that police were on the way. The woman explained that Hassard was “kind of slurring” and that she smelled alcohol on his person. She asked the dispatcher to stay on the phone with her because she believed Hassard was intoxicated. When she told Hassard that the dispatcher advised that they pull off of the road, Hassard walked back to his vehicle. The woman pulled her vehicle into a nearby parking lot and got out of her vehicle to wait for Hassard, but Hassard drove away speeding after he saw her. The woman gave the police dispatcher Hassard’s tag number and described his vehicle.

Within an hour of the incident, an investigating officer located Hassard’s residence using information from his vehicle tag number. The officer left his business card when no one answered the door. Hassard later called the officer and “admitted to being involved in the hit-and-run.” The officer asked Hassard to come speak with him and Hassard agreed. Shortly afterward, however, the officer received a voicemail message from Hassard stating that “he spoke with his attorney and he would not be coming in to speak with me.” The officer then took out warrants for Hassard’s arrest for following too closely and hit-and-run.

During further investigation, the officer discovered that Hassard had been in a vehicle accident and charged for DUI-less safe in Gwinnett County about 54 minutes after the hit-and-run incident in Fulton County. He contacted the arresting officer and obtained a report of the Gwinnett County incident. Based upon the statement of the woman in the Fulton County hit-and-run incident, and his belief that there was not enough time for Hassard “to stop at a location to consume enough beverages to make him intoxicated between the [Fulton County] incident and [the Gwinnett County] incident,” the officer took out a warrant for Hassard’s arrest for DUI-less safe.

The officer who responded to the Gwinnett County incident testified that Hassard had difficulty getting out of his vehicle, was unsteady on his feet and swayed, was lethargic, did not respond to questions quickly, was “unsure of what was going on,” used his vehicle for balance, had the “odor of alcohol about his breath,” and that his eyes were “glassy and bloodshot.” A small bottle of vodka was found in his vehicle. The Gwinnett County officer arrested Hassard for DUI-less safe.

Hassard subsequently pled guilty to DUI-less safe to the Gwinnett County charge. After his plea, Fulton County charged Hassard by accusation with hit-and-run, following too closely, driving under the combined influence of drugs and alcohol, driving under the influence of a drug, less-safe, and driving under the influence of alcohol, less-safe.

Hassard filed a plea in bar on double jeopardy grounds seeking to preclude his prosecution for DUI-less safe in Fulton County. Prior to a bench trial, the trial court denied Hassard’s plea in bar. Following the evidence presented at the bench trial, the court found Hassard guilty of driving under the influence of alcohol to the extent he was less safe and following too closely; it found him not guilty on the remaining charges.

1. Hassard argues that the trial court erred in denying his plea in bar on double jeopardy grounds.

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, states that no person shall be subject for the same [offense] to be twice put in jeopardy of life or limb. Brown v. Ohio, 432 U. S. 161, 164 (97 SC 2221, 53 LE2d 187) (1977). See 1983 Ga. Const., Art. I, Sec. I, Par. XVIII.... It protects criminal defendants from three governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.

(Citation and punctuation omitted.) Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d 564) (2010). “The Georgia constitutional and statutory protections against double jeopardy also apply to multiple prosecutions or punishments for the ‘same offense’ or ‘same crime,’ to offenses arising from the ‘same conduct’ or ‘same transaction,’ and to ‘lesser included offenses.’ ” (Citations and punctuation omitted.) Shaw v. State, 225 Ga. App. 193, 194 (1) (483 SE2d 646) (1997). “The appellate standard of review of a grant or denial of a double j eopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citations, punctuation and footnote omitted.) Alden v. State, 314 Ga. App. 439, 440 (724 SE2d 451) (2012).

Here, Hassard’s plea in bar claims a violation of OCGA § 16-1-7. That Code section provides in relevant part:

(a) When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if:
(1) One crime is included in the other; or
(2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .

Hassard argues that the Fulton County DUI-less safe charge is barred because “both the Fulton and Gwinnett County driving under the influence charges arose from the same conduct.” This court has held that “[t]he term ‘same conduct’ is used interchangeably with the phrase ‘same transaction.’ We also consider whether the offenses at issue ‘arose out of one course of conduct.’ ” (Citations omitted.) Dean v. State, 309 Ga. App. 459, 460 (711 SE2d 42) (2011).

Hassard relies on State v. Willis, 149 Ga. App. 509 (254 SE2d 743) (1979), to support his argument that prosecution for DUI-less safe in the two different counties arose out of the same conduct and is therefore barred by double jeopardy. But in Wilis, the defendant was arrested following a continuous high-speed chase that began in Fulton County and ended in Cobb County. Id. This court held that the DUI charge arose out of the same conduct of the defendant in both counties, and that therefore the conviction in one county bars prosecution in another. Id. at 511 (3).

These facts are similar to those in Dean, supra. There, the defendant pled guilty to DUI and following too closely after colliding with several vehicles as she drove her vehicle a short distance down a road outside of, and then into, city limits. Dean, supra, 309 Ga. App. at 460. She pled guilty to the county charges and then moved to dismiss the city charges. Id. This court concluded that the defendant could not be prosecuted for the city charges because all of the offenses arose out of one course of conduct because “[t]here was no break in the action; she drove down the road, colliding with cars and committing numerous traffic violations in two jurisdictions until a final collision left her vehicle disabled.” Id.

Here, however, there were two separate courses of conduct. When Hassard collided with the woman’s vehicle in Fulton County, he got out of his vehicle, walked to her vehicle, had an extended conversation with her as she spoke with the police dispatcher, got back into his vehicle and began to follow her to a parking lot, but then drove away after driving back by the scene. Hassard collided with another vehicle in Gwinnett County nearly an hour later. This evidence showed that at two different times and in two different locations, Hassard drove under the influence of alcohol to the extent he was less safe albeit on the same day. See Lefler v. State, 210 Ga. App. 609, 609-610 (1) (436 SE2d 777) (1993) (DUI and vehicular homicide prosecution in Fulton County not barred where defendant hit a pedestrian in Fulton County but was arrested and charged with DUI in Cobb County approximately four hours later). Thus, Hassard’s actions in the Fulton County incident and his actions in the Gwinnett County incident were neither the same transaction nor the same conduct as contemplated by OCGA § 16-1-7 (a). Id. Jeopardy therefore did not attach, and the trial court did not err in denying Hassard’s plea in bar.

2. Hassard contends that the evidence was insufficient to sustain his conviction for DUI-less safe because a lay witness testified that he appeared intoxicated and the State did not show “that she had the requisite knowledge, experience or abilities to make this determination.” He argues further that there was no evidence that he was operating a vehicle while intoxicated in Fulton County, no field sobriety tests were performed, and no witnesses testified that they observed him ingest alcohol.

Contrary to Hassard’s argument here, we have held that “[a] lay witness may testify as to the intoxication of the defendant and the extent thereof where the witness states the reasons for his opinion and shows that he did observe the defendant.” (Citation and footnote omitted.) McKay v. State, 264 Ga. App. 726, 729 (2) (592 SE2d 135) (2003); see also Lawrence v. State, 157 Ga. App. 264, 264 (2) (277 SE2d 60) (1981) (“A witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based. [Cits.]”).

Here, the woman testified that Hassard had trouble getting out of his vehicle, was “fidgeting and stumbling,” had to balance himself by holding on to the hood of both vehicles, was “kind of slurring,” and smelled of alcohol. This witness stated further that she believed Hassard was intoxicated, and that she had “come across people under the influence of alcohol” many times in her life and that based on her experience, Hassard’s demeanor matched that of others she had observed intoxicated. This evidence, along with the evidence that Hassard “bump[ed]” the woman’s vehicle while she waited at a red light and soon after fled the scene, was sufficient to support the trial court’s finding that Hassard was under the influence of alcohol to the extent he was a less safe driver. See McKay, supra; Lawrence, supra.

Decided February 7, 2013.

Stein & Ward, Brian T. Caron, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

3. Hassard contends that the trial court erred in considering the Gwinnett County incident as a similar transaction. Assuming without deciding that the Gwinnett County incident was a similar transaction, Hassard posed no objection at the bench trial to the testimony surrounding this incident and made no objection that the trial court failed to hold a similar transaction hearing pursuant to Uniform Superior Court Rule 31.3 (B). “To preserve an obj ection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.” (Citation, punctuation and footnote omitted.) Scoggins v. State, 306 Ga. App. 760, 762 (1) (703 SE2d 356) (2010); see Frazier v. State, 252 Ga. App. 627, 630 (3) (a) (557 SE2d 12) (2001) (we are bound to follow firm rule in Georgia jurisprudence requiring trial objection on similar transaction evidence).

Judgment affirmed.

Doyle, P. J., and Andrews, P. J., concur.

       In her written statement to police, the woman stated that Hassard “could hardly get out of his car,” and “seemed either drugged or drunk.”

       To the extent Hassard contends that Lefler, supra, and OCGA § 16-1-7 (b) are unconstitutional as applied to him, his failure to raise such argument below waives the issue on appeal. See Gordian v. State, 261 Ga. App. 75, 77 (3) (581 SE2d 616) (2003).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A12A2442.
    CLAYTON v. THE STATE.
    (738 SE2d 299)
   Ray, Judge.

Following a jury trial, Taneka Aundrell Clayton was found guilty of aggravated assault and criminal trespass. She appeals the denial of her motion for new trial, contending that the trial court erred in allowing the State to bolster witness statements and also erred in charging the jury on aggravated assault. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the record shows that on April 4, 2008, Clayton went to an apartment complex where her husband, Keita Andrews, from whom she was separated, was visiting a friend. Clayton and Andrews argued. Clayton broke Andrews’ phone and threw it into the woods. He called the police, and an officer came to the complex so that Andrews could move his belongings without interference from Clayton. Later, as Andrews and his friend were leaving, Clayton rammed his car with her vehicle, then blocked his car so that he could not leave. He again called the police, and the same officer responded, telling Clayton not to restrict Andrews’ movement. Andrews and his friend then drove to another apartment complex. Clayton called Andrews on his phone and told him, “Oh, you just slipped.... Go look at your car.” When he went to look at his car, he saw that it had been scratched all over, and that a half-heart and the number seven were scratched on it. He again called police, and the same officer who responded to the prior incidents prepared a report. Andrews then went to visit another friend, and in the early morning hours of April 5, 2008, as he was getting in his car to leave, Clayton arrived. She threw a large “concrete brick rock” weighing approximately ten pounds at him, hitting his arm and causing it to bleed, and breaking his windshield. He again called the police, and the same officer came to the scene and issued a warrant for Clayton’s arrest. Andrews got his windshield repaired about four days later, and the next day, he found that a brick had been thrown through the car’s windshield, another brick had been left on his hood, and the car had been scratched. Clayton was arrested the same day.

1. Clayton contends that the trial court erred in allowing the State to bolster Andrews’ testimony and the testimony of an eyewitness by permitting an investigating officer to read their witness statements at trial. Specifically, she argues that the admission of such prior consistent statements amounted to improper bolstering.

However, an examination of the portion of the transcript Clayton cites shows that the “objection” she asserts was, in fact, a motion for a directed verdict. That motion related to the officer’s reading a statement by the eyewitness regarding an allegation that Clayton threatened to kill Andrews. The alleged statement related to a charge of terroristic threats; however, pretermitting whether its admission was error, this could not have contributed to Clayton’s guilty verdict on this issue, as she was acquitted of terroristic threats. An appellant must show harm as well as error to prevail on appeal. We find no error.

2. Although Clayton raised no objection to the jury charge at trial, on appeal, she contends that a portion of the charge on aggravated assault was not supported by evidence in the record, and that the trial court erroneously charged the jury on a method of committing aggravated assault that was not specified in the indictment, thus expanding the ways in which the jury could find her guilty.

The indictment charged Clayton with throwing a large rock at Andrews’ head, “an object which, when used offensively, could or did actually result in the serious bodily injury to [Andrews’] arm.” In its charge to the jury, the trial court defined aggravated assault and both manners of committing simple assault:

Aperson commits simple assault when that person attempts to commit a violent injury to the person of another. A person commits the offense of aggravated assault when that person assaults another person with any object that, when used offensively against a person, is likely to or does result in serious bodily injury. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim or intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury.

Citing Taiton v. State, Clayton argues that the trial court’s jury instruction was unwarranted under the facts presented at trial because it is error to charge the jury that a crime may be committed by alternative methods under the statute when the indictment alleges it was committed by one specific method. Specifically, Clayton argues that the allegation of rock-throwing in the indictment differs from the portion of the charge on “reasonable fear of immediately receiving a violent injury.” In Taitón, we reversed the defendant’s conviction for aggravated assault, finding that the court’s instruction “constructively amended the indictment to relieve the jury of finding one of the material allegations averred” because the indictment charged the defendant with “shooting” the victim, while the jury instructions stated that the defendant placed the victim in reasonable apprehension of injury by “pointing” a gun at him.

Decided February 7, 2013.

Jonathan P. Waters, for appellant.

Gregory W. Winters, District Attorney, Pamela White-Colbert, Assistant District Attorney, for appellee.

Unlike in Taitón, in the instant case, “the trial court did not charge a separate, unalleged method of committing aggravated assault, but simply defined both methods of committing simple assault, a lesser included offense.” Further, the trial court’s charge in the instant case tracked the suggested pattern charge on aggravated assault, which includes the statutory definitions of simple assault. We find no error.

As the trial court did not rule on whether the evidence supported the charge on aggravated assault, we have nothing to review in this portion of the enumeration.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-7-21.

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

       See Perry v. State, 314 Ga. App. 575, 577 (1) (724 SE2d 874) (2012).

         Although Clayton objected to the officer’s testimony below, her objection related to the relevance of the introduction of witness statement forms, not to bolstering via the officer’s testimony, which is the enumeration of error asserted in this appeal. Because the objection at trial differs from the error asserted on appeal, “we will not address whether the testimony improperly bolstered [the testimony of the witnesses] as this argument was not presented to [n]or ruled upon by the trial court.” (Footnote omitted.) Moore v. State, 246 Ga. App. 163, 166 (5) (539 SE2d 851) (2000). See also Brown v. State, 247 Ga. App. 741, 743 (2) (545 SE2d 114) (2001).

       254 Ga. App. Ill (561 SE2d 139) (2002).

       Id. at 113 (1).

        Heard v. State, 257 Ga. App. 315, 317 (2) (573 SE2d 82) (2002).

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 2.20.21; OCGA § 16-5-20 (a) (1), (2).

       See Cummings v. State, 272 Ga. App. 886, 889 (2) (614 SE2d 121) (2005). We note that the record indicates that Andrews tried to protect himself from being hit by the large rock by attempting to dodge it. We have held that circumstantial evidence of defensive action by the victim is sufficient to authorize the jury to infer that the victim was in reasonable apprehension of suffering immediate violent injury. See Payne v. State, 195 Ga. App. 523, 525 (4) (394 SE2d 781) (1990).


author: DOYLE, Presiding Judge.

text:
    A12A1678.
    HOLLOMAN v. THE STATE.
    (738 SE2d 306)
   DOYLE, Presiding Judge.

William Earl Holloman appeals from his conviction of selling cocaine. On appeal, Holloman’s sole argument is that the trial court erred by finding that the prosecution did not violate Batson v. Kentucky when it used five peremptory strikes to remove black jurors and by denying his motion for new trial based on his Batson challenge. For the reasons that follow, we affirm.

A trial court

employ[s] a three-step analysis in addressing a defendant’s Batson challenge. First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Then, the burden shifts to the proponent of the strike to provide a race-neutral reason for the strike. The trial court then decides whether the opponent of the strike has proven discriminatory intent.

Unless the trial court’s decision was clearly erroneous, we shall not disturb the court’s ruling.

The record reveals that out of thirty-four potential jurors, twelve were black, and the twelve-person jury empaneled to hear the case consisted of two black individuals. The State used five peremptory strikes, and each of those strikes was used against a black individual. The State explained that one of those jurors was struck because he knew the defendant, and Holloman conceded that the State properly struck this individual. The State then explained that it struck the other four individuals because pre-trial preparation revealed that each of those individuals had involvement with law enforcement, even if the incident was an arrest or a charge that was later dismissed. The State did not have the results of its background searches in court, but proffered that its reason for striking the four remaining jurors was based on that check. The trial court found that the State’s proffered reason for striking the four jurors based on their criminal background check results was a race-neutral reason and denied Holloman’s Batson motion.

“Because the [State] offered race-neutral reasons for the peremptory challenges [,] and the trial court ruled on the ultimate question of intentional discrimination, we need address only the sufficiency of the [State’s] explanation for the peremptory strikes.” Holloman contends that although the State proffered the criminal background check of these jurors as the reason for their dismissal, he argues that the State failed to supply evidence of the results of the check at the trial or at the hearing for the motion for new trial, which supports his argument that the proffered reason was not credible. Nevertheless, no evidence was presented by Holloman that the reason given by the State for striking these particular jurors would not also have been applied neutrally to a white juror with a similar background. Ultimately it was Holloman’s burden to provide evidence to support his argument, and Holloman failed to produce this proof during trial or at the hearing on the motion for new trial.

Decided February 8, 2013.

Jason C. Cain, for appellant.

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

Accordingly, his argument is without merit.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 16-13-30 (b).

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Punctuation and footnote omitted.) Cowan v. State, 279 Ga. App. 532, 534 (2) (631 SE2d 760) (2006).

       See id.

        White v. State, 258 Ga. App. 546, 548 (3) (574 SE2d 629) (2002). See also Smiley v. State, 263 Ga. 716, 716-717 (1) (438 SE2d 75) (1994) (criminal history constitutes a race-neutral reason, which the defendant must overcome to establish a Batson violation).

       See Smiley, 263 Ga. at 716-717 (1). See also White, 258 Ga. App. at 550 (3) (“A neutral explanation is one based on something other than the race of the juror, and, if discriminatory intent is not inherent in the explanation, the reason offered will be deemed race-neutral. At the final stage of a Batson inquiry, the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”) (citation and punctuation omitted).

       See White, 258 Ga. App. at 549-550 (3) (“The trial court’s decision on a.Batson motion rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.”).


text:
    A12A1794.
    JOHNS v. THE STATE.
    (738 SE2d 304)
   DOYLE, Presiding Judge.

Brian Louis Johns, Jr., appeals from the trial court’s order denying his motion in autrefois convict and plea of former jeopardy. For the reasons that follow, we affirm.

In addition to constitutional proscriptions of double jeopardy, the extent to which an accused may be prosecuted, convicted, and punished for multiple offenses arising from the same criminal conduct is limited even more strictly by the Georgia Criminal Code. Under OCGA § 16-1-7 (b), if several crimes [1] arising from the same conduct are [2] known to the proper prosecuting officer at the time of commencing the prosecution and are [3] within the jurisdiction of a single court, they must be prosecuted in a single prosecution. A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b). In order for this procedural aspect of double jeopardy to prohibit a prosecution, all three prongs must be satisfied.

In order to determine whether offenses occurred as a result of the same conduct to constitute procedural double jeopardy, this Court has explained that the crimes, inter alia, must arise from the same transaction or continuing course of conduct, occur at the same scene, occur on the same date, and occur without a break in the action; additionally, if it is necessary to present evidence of the one crime in order to prove the other, then the State must prosecute those charges at the same time.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.”

A review of the record before us, however, reveals that there is no transcript of the hearing contained therein, and as the party alleging error, Johns was required “to show error by the record. Because we do not have all of the evidence presented to the trial court below, we must assume that the judgment below was correct.”

Nevertheless, as stated in Johns’s motion before the trial court,

[Johns] got into an argument with his live-in girlfriend on March 23, 2010[,] and damaged some of her clothes. She called the police[,] and [Johns] left driving his vehicle. One of the police officers went to the residence at 109 Godly Road, Brunswick, Georgia [,] and the girlfriend told the police that the Defendant left driving and that he was drinking alcoholic beverages. Another police officer stopped the Defendant at the intersection of Godley Road and Hwy. 99 in Glynn County, Georgia. [Johns] was charged with Driving Under the Influence and taken to jail. [Johns] made bond[,] and on April 15, 2010[,] he was arrested for criminal trespass (FVA) for the incident that occurred on March 23, 2010[,] with his girlfriend.

Decided February 8, 2013.

Robert L. Crowe, for appellant.

Maria S. Lugue II, Solicitor-General, for appellee.

Thereafter, Johns pleaded guilty to criminal trespass.

Based on the recitation of those facts in Johns’s own motion, the trial court did not err by denying the motion because the offense of DUI did not arise from the same transaction as the offense of criminal trespass (Family Violence Act). Johns was arrested on a warrant for a criminal trespass at the residence of his live-in girlfriend; Johns was not at the scene when officers arrived, and the crime was charged based on the statements given to officers by Johns’s girlfriend. According to Johns, “another officer” stopped his vehicle and charged him for DUI-less safe. Although the stop may have occurred near the residence in question, and although the officer who arrested Johns for DUI may have had information that Johns appeared to be intoxicated while he committed the criminal trespass, 7the two incidents were separate transactions, one of which had been completed prior to the other, and both of which could be presented to a trier of fact without disclosing evidence of the other offense.

Accordingly, the trial court did not err by denying Johns’s motion to dismiss based on double jeopardy grounds.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       (Punctuation and footnotes omitted.) Nicely v. State, 305 Ga. App. 387, 387-388 (1) (699 SE2d 774) (2010). See also Collins v. State, 177 Ga. App. 758 (1) (341 SE2d 288) (1986).

       See State v. Stewart, 317 Ga. App. 82, 84 (729 SE2d 478) (2012). See also Boyette v. State, 172 Ga. App. 683, 684 (1) (324 SE2d 540) (1984).

       (Punctuation omitted.) Nicely, 305 Ga. App. at 389 (1).

        Zellars v. State, 314 Ga. App. 88, 89-90 (2) (723 SE2d 319) (2012).

       See Stewart, 317 Ga. App. at 85; Boyette, 172 Ga. App. at 684 (1).

       “For OCGA § 16-1-7 (b) to apply, the prosecutor handling the proceedings [(not the arresting officer)] must actually know of the crimes. The burden is on the defendant to show such knowledge on the part of the prosecuting officer.” (Punctuation and footnotes omitted.) Barlowe v. State, 286 Ga. App. 133, 134 (648 SE2d 471) (2007).

       See Stewart, 317 Ga. App. at 85-86 (reversing trial court grant of double jeopardy motion because obstruction charges did not arise from the same conduct as underlying traffic charges); Boyette, 172 Ga. App. at 684 (1) (affirming the denial of a plea of double jeopardy in defendant’s trial for five traffic offenses after pleading guilty to disorderly conduct because the disorderly conduct, which constituted actions the driver committed after leaving the roadway “were completed at a different time and at [a] different location! ]”)•


author: Miller, Presiding Judge.

text:
    A12A2319.
    PIERCE v. THE STATE.
    (738 SE2d 307)
   Miller, Presiding Judge.

Following a stipulated bench trial, Takeya Pierce was convicted of driving under the influence of alcohol (DUI-less safe) (OCGA § 40-6-391 (a) (1)). On appeal, Pierce challenges the trial court’s denial of her motion to suppress, contending that the officer seized her without an articulable suspicion when he knocked on the window of her parked vehicle and asked her to roll it down. Discerning no error, we affirm.

When reviewing a trial court’s decision on a motion to suppress, this [C] ourt’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citation and footnote omitted.) Jones v. State, 259 Ga. App. 506 (1) (578 SE2d 165) (2003).

Viewed in the light most favorable to the trial court’s findings, the evidence shows that on February 6,2012, Pierce was sitting in the driver’s seat of a vehicle parked in front of a gas station. The vehicle’s engine was running and the headlights were on. As the police officer exited the gas station, he observed Pierce in the vehicle and believed that Pierce was asleep behind the wheel. The officer approached Pierce’s vehicle and shined his flashlight inside the vehicle. When the officer received no response from Pierce, he knocked on the window of the vehicle. Pierce woke up and looked at the officer standing at her window. Pierce then looked back down and began to scroll through her cell phone. The officer again knocked on the window and asked Pierce to roll it down. In response, Pierce rolled down her window, whereupon the officer detected an odor of alcohol and noticed that Pierce had glassy eyes. The officer asked Pierce to step out of the vehicle, and Pierce admitted that she had consumed alcohol earlier that day. After Pierce failed some of the field sobriety tests administered to her, she was arrested for DUI-less safe.

After her arrest, Pierce moved to suppress the evidence, contending that the officer seized her without an articulable suspicion of criminal activity when he knocked on the window of her vehicle a second time and asked her to roll it down. The trial court denied her motion.

In her sole enumeration of error, Pierce contends that the trial court erred in finding that the officer seized her without an articulable suspicion of criminal activity when he asked her to roll down her window. We disagree.

Fourth Amendment law is clear:

[There are] three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.

(Citations and punctuation omitted.) Akins v. State, 266 Ga. App. 214, 215 (596 SE2d 719) (2004).

Here, the police officer’s testimony showed that Pierce was already stopped when the officer approached her vehicle. “It is well-established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a ‘stop’ or ‘seizure’ but rather clearly falls within the realm of the first tier of police-citizen encounter[s].” (Citation and punctuation omitted.) Akins, supra, 266 Ga. App. at 215 (1). During this first-tier encounter, the officer was permitted to “ask [Pierce] to roll down a window or step out of a car, and freely question [her] without any articulable suspicion, as long as the officer [ ] [did] not detain [her] or create the impression that [she] may not leave.” (Citation and punctuation omitted.) Id. at 216 (1); see also Mauge v. State, 279 Ga. App. 36, 38 (630 SE2d 174) (2006). There is no evidence that the officer asked Pierce to roll down her window in a manner “that would have made a reasonable person in her position believe she was not free to leave.” (Punctuation omitted.) Akins, supra, 266 Ga. App. at 215 (1). Significantly, “[t]here was no evidence that [the officer] engaged his siren [or] emergency equipment, drew his firearm, or made any other show of force. Nor is there any evidence that the officer threatened, coerced, or physically restrained appellant.” (Punctuation and footnote omitted.) Lucas v. State, 284 Ga. App. 450, 452 (644 SE2d 302) (2007).

Decided February 8, 2013.

Matthew M. McCord, for appellant.

John A. Pipkin III, Solicitor-General, Brittany A. Lavalle, Assistant Solicitor-General, for appellee.

Pierce contends that the first-tier encounter escalated into a second-tier encounter when, after she ignored the officer’s first knock, the officer again knocked on the window and asked her to roll it down. Even if the encounter rose to the level of a second-tier encounter, the officer had a reasonable, articulable suspicion to detain Pierce. Notably, the officer found Pierce asleep behind the wheel of a vehicle with the engine running, and she was unresponsive when he initially shined his flashlight inside her vehicle. See Hendrix, supra, 273 Ga. App. at 792-794 (1) (officer had reasonable suspicion to detain defendant when defendant was asleep at the wheel of his vehicle and was unresponsive to officer’s initial attempt to wake him). Since the officer’s request was supported by a reasonable suspicion, we affirm the trial court’s denial of Pierce’s motion to suppress. See Akins, supra, 266 Ga. App. at 216 (2).

Judgment affirmed.

Ray and Branch, JJ., concur.

       A defendant may be charged and convicted of DUI-less safe notwithstanding the fact that the defendant was in a parked vehicle when she appeared to be asleep in driver’s seat of vehicle with the engine running and there was no one else present in the vehicle. See Hendrix v. State, 273 Ga. App. 792, 797 (3) (b) (616 SE2d 127) (2005) (although officers did not see the vehicle moving, they observed circumstances showing that the impaired defendant was in actual physical control of the vehicle, including evidence that the defendant was asleep at the wheel, he was alone in the vehicle, and the vehicle’s engine was running).


author: PHIPPS, Presiding Judge.

text:
    A12A2146.
    WRIGHT v. THE STATE.
    (738 SE2d 310)
   PHIPPS, Presiding Judge.

In connection with crimes perpetrated upon Wayne Thatcher, a jury found Glenard Rico Wright guilty of armed robbery, aggravated assault, possession of a firearm during the commission of a crime (armed robbery), and theft by taking. In this appeal, Wright contests the sufficiency of the evidence to support his convictions, the admissibility of certain evidence, the propriety of various remarks made during the state’s closing argument, the trial court’s refusal to instruct the jury on robbery as a lesser included offense of armed robbery, and the court’s rejection of his claim of ineffective assistance of trial counsel. Because Wright has demonstrated no reversible error, we affirm.

1. Where, as here, the appellant challenges the sufficiency of the evidence to support a 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.”

Thatcher testified about the crimes committed against him, as follows. On January 18, 2009, at about 8:40 a.m., he drove to a park’s aquatic center, where he planned to attend his granddaughter’s swim meet. After parking his SUV about a block down the street, he began walking to the aquatic center, holding in his hand his cell phone and keys. Thatcher noticed three individuals walking together nearby; abruptly, the male among the three approached him, thrust a gun approximately six inches from his face, took his cell phone and keys, and then commanded Thatcher to “Get out of here,” while waving the gun. Thatcher ran into the aquatic center and reported the incident to police. At trial, Thatcher identified Wright as the gunman.

Evidence showed that, at about 11:15 a.m., a police officer drove Thatcher to a location about a mile from the aquatic center, where his stolen SUV had crashed. A police officer had unsuccessfully pursued the SUV’s driver, a male who fled on foot; however, two girls whom police discovered at the SUV were detained at the crash site. Thatcher identified one girl as one of the three individuals he had seen when walking to the aquatic center; Thatcher did not identify the other. Thatcher’s SUV key was in the ignition, and his cell phone was found inside the vehicle. Numerous calls had been placed using his phone since it was taken, including one call to Wright’s mother, with whom Wright lived. Police took the two girls into custody. One girl was Wright’s cousin, and the other girl was the cousin’s friend. Each girl appeared at Wright’s trial as a witness for the state.

Wright’s cousin was 15 years old when she testified at the trial held in March 2010. She recounted that on the night before the incident, she and her friend had spent the night at Wright’s mother’s house. The next morning, January 18, she and her friend began walking to the park where a swim meet was taking place; Wright soon “caught up” with them. Wright’s cousin recalled at trial seeing a man parking his SUV, Wright approaching the man as the man was walking toward the aquatic center, Wright putting a gun to the man’s head, and the man then running away. Wright’s cousin testified that, later that day, she and her friend saw Wright standing by the man’s SUV. They all got into the SUV, and Wright drove away. The police were soon following them. While the SUV was in motion, Wright jumped out of it and fled on foot. The SUV crashed, and the two girls, but not Wright, were taken into police custody. That same day, Wright’s cousin gave a written statement to police.

Wright’s cousin’s friend was 13 years old when she testified to the following. On the night before the incident, January 17, she and Wright’s cousin slept at Wright’s mother’s house. Early the next morning, she and Wright’s cousin walked to the park with the aquatic center, and Wright joined them later. Wright made a comment to them about the large number of cars in the area and said that he needed a car. About that time, the girl testified, Wright noticed an SUV being parked on a hill nearby and told them that he liked that vehicle; so, he left the girls, walked up the hill, then approached Thatcher, the man who just had parked the SUV. The girl was asked at trial, “What did you see happen next?” She answered that she and Wright’s cousin started “walking like — like going up the hill. And I saw the man, Mr. Thatcher, running down the hill.” She recounted further that Thatcher appeared scared as he was running away and that Wright meanwhile sped away in Thatcher’s SUV.

Wright’s cousin’s friend testified further that when she and Wright’s cousin later saw Wright with the SUV, they got into the SUV and Wright drove away. Soon, a police car was trailing them, and Wright accelerated. After turning down a street that ended at a ravine, Wright announced that they would all jump out (while the SUV was moving). She elected to stay in the back seat; Wright’s cousin tried to jump out, but the door pinned her leg to the vehicle; and Wright escaped on foot into nearby woods. She and Wright’s cousin were taken into custody, and that day, she gave a written statement to police.

The state showed that Wright was arrested about four months after the criminal incident, in May 2009.

Wright, who was about 20 years old at the time of trial, did not testify, but called as witnesses his mother, his maternal aunt, and another relative. His mother testified that Wright was living with her at the time in question and typically slept or stayed “in his bed laying around” until noon each day. She recalled specifically the date in question, and testified that Wright was at home that morning until at least 10:30. She testified that neither of the girls who were found at Thatcher’s crashed SUV had spent the previous night at her home. To her knowledge from cleaning her son’s room, Wright did not own a gun. Wright’s mother recalled that she did not immediately learn about the criminal incident involving Thatcher, but that when she accompanied Wright to a hearing on charges related thereto, Wright apprised her of the allegations, including the specific date of the incident. She conceded at trial that, despite determining prior to Wright’s trial that Wright was at home at the time of the crimes, she had not told police so until the trial date.

Wright’s maternal aunt testified that she was living with Wright and his family during the relevant time period, that Wright did not work, and that he typically got out of bed at about noon. She, too, recalled specifically that Wright was in his room on the morning of the incident, and that neither of the girls who were later discovered at Thatcher’s crashed SUV had either spent the previous night at the residence or was at the residence that morning. She recalled further that Wright’s mother had told her that Wright had been arrested for robbery, and she conceded at trial that she had never told the police that Wright could not have been the perpetrator.

Wright’s third witness, another relative, testified that he, also, was living at Wright’s residence at the time of the incident, that Wright had no job, and that Wright typically stayed in bed until early afternoon. This relative specifically recalled that, when he (the relative) woke up at about 11:00 or 11:30 a.m. on the particular date that Thatcher’s property was taken from him, Wright was at home. This relative also had not heard about the underlying criminal incident until about the time he learned that Wright had been arrested in connection therewith. He testified that, after Wright was arrested, his mother refreshed his memory of the particular date in question. He, too, conceded that he had not reported to police that Wright was at home that morning.

On appeal, Wright challenges the sufficiency of the evidence to support the guilty verdicts upon charges of: (i) armed robbery, by taking, with use of a gun, a cell phone and keys from Thatcher; (ii) aggravated assault, by pointing a gun at Thatcher; (iii) possession of a firearm during the commission of a crime (armed robbery); and (iv) theft by taking Thatcher’s SUV. Wright cites what he claims were weaknesses in the state’s case, including that the state’s witnesses were not credible and gave contradictory accounts.

This evidentiary challenge presents no basis for reversal.

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

2. Wright contests, on various grounds, the admission of the following evidence.

(a) Citing his cousin’s testimony that he committed the crimes with the use of a gun, Wright argues that the trial court erred by allowing the prosecutor to “lead its witness [ ] into making statements by putting words in the witnesses] mouth.” The transcript shows that, on direct examination of this witness, the state elicited testimony that she was walking with her friend and Wright and that Wright left their company and ran to the man who had just parked an SUV. Direct examination continued.

Q: Now, what did you do when you saw the defendant run up to the man that you saw parking the car?
A: I was just standing there.
Q: What was [your friend] doing?
A: Standing there.
Q: And I want you to look over and tell these folks what you saw the defendant do.
A: I seen him run up to — I seen him run up to the man, and then I seen the man run down the street.
Q: Now, did you see what happened between the two of them?
Q: Did you see the defendant with a gun?

Defense counsel objected to the latter question as leading. The court responded, “I understand your objection. Overruled. I will allow it.” Wright’s cousin thereafter testified that she saw Wright “put [the gun] to the man’s head.”

We reject Wright’s characterization that the prosecutor put words in the witness’s mouth. And “[a] s to the leading nature... of the question[ ], the trial court has the discretion to allow leading questions on direct examination, when a witness is nervous, or reluctant.” During the examination of Wright’s then 15-year-old cousin, she was occasionally nonresponsive; the girl’s demeanor caused the prosecutor to ask her whether she “need[ed] a minute”; and she revealed that she had been scared when she saw Wright put a gun to the man’s head and was upset to be in court testifying against him. OCGA § 24-9-63 authorizes a court to allow leading questions “when, from the conduct of the witness or other reason, justice shall require it.” “Based on this statute, the courts have traditionally accorded a great deal of latitude in the examination of young or timid or otherwise disadvantaged witnesses.” We discern no abuse of discretion here, based upon the cited question posed to this witness.

(b) Wright argues that the trial court erred by allowing evidence that when he was arrested on May 8, 2009, he told police that his name was “Terry Glenn Wright.” Wright asserts that his arrest on that date was not for the incident involving Thatcher and that, because the evidence was thus irrelevant to the instant case and showed him to be a liar, it impermissibly impugned his character.

This evidence was presented through the testimony of the arresting officer. But before that officer took the stand, and outside the presence of the jury, the court heard argument concerning the admissibility of the contemplated testimony. The prosecutor reminded the court of evidence that Wright was not apprehended on January 18, 2009, the date Thatcher was accosted and robbed, then posited to the court that Wright nevertheless likely knew that he was a suspect in that incident and thus gave a false name to police when arrested some four months later (albeit for an unrelated crime of cocaine possession) in an attempt to avoid being charged for the Thatcher incident. The prosecutor argued that a reasonable inference would arise from the arresting officer’s contemplated testimony, together with other evidence, that Wright was in flight from police apprehension relating to the Thatcher incident. Moreover, the prosecutor told the court that he would elicit no evidence about Wright’s cocaine possession charge. The court allowed the complained-of evidence, but explicitly ruled that any drug evidence was prohibited.

“The decision to admit evidence is a matter resting in the trial court’s sound discretion, and evidence that is relevant and material to an issue in the case does not become inadmissible because it incidentally places the defendant’s character in issue.” Evidence regarding the circumstances connected with an accused’s arrest is “subject to the same standard of relevancy and materiality applicable to other evidence.” Thus, “when evidence of certain circumstances surrounding the arrest is wholly unrelated to the charged crime, the arrest is remote in time from the charged crime, and the evidence is not otherwise shown to be relevant, it should not be admitted, and thus, it is an abuse of the trial court’s discretion to do so.”

We find no abuse of discretion in the trial court’s allowing the evidence. In accordance with the trial court’s evidentiary proscription, the arresting officer gave no testimony linking Wright to any cocaine possession. And as the prosecutor posited, Wright’s giving law enforcement a false name when arrested (four months) after the Thatcher incident allowed for a reasonable inference that Wright was attempting to elude capture therefor. Thus, we find no merit in Wright’s contention that the officer’s testimony, which was limited as directed by the trial court, amounted to impermissible, prejudicial character evidence.

(c) Wright complains that the trial court allowed Thatcher to testify on direct examination about an irrelevant matter •— the effects that the criminal incident had on his family life. But at trial, Wright made no objection to this testimony. And although Wright asserts that his subsequent motion for mistrial should have been granted, the cited motion ■— not made until two additional witnesses had given testimony — did not include the ground asserted here. Consequently, Wright’s complaint provides nothing for this court to review.

3. Wright contends that the trial court erred by allowing the prosecutor to make during closing argument irrelevant, prejudicial statements concerning matters not in evidence.

(a) Wright cites that, after summarizing the underlying incident as described by the state’s witnesses, the prosecutor made a “future dangerousness” statement, as follows:

The only point where the defense and state, I guess, disagree is that they are saying that the third person there wasn’t the defendant. And why are they saying that? ... Because they have to— They have to come up with something because he doesn’t want to take responsibility for this horrible crime that he has committed. Because the next time he does this, he might shoot somebody.

Wright’s trial counsel interposed, “I think he is getting in the area of future dangers that he is not allowed to,” and the court responded, “All right. Let’s continue. Be careful, but let’s continue.”

On appeal, Wright asserts that the trial court’s response fell short of satisfying OCGA § 17-8-75, which provides:

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.

It is improper for a prosecutor to argue to the jury during the guilt-innocence phase of a trial that if found not guilty, a defendant poses a threat of future dangerousness. “The argument simply is irrelevant to the question of whether, under the facts introduced into evidence, the defendant is guilty beyond a reasonable doubt of the crime [s] charged.” Accordingly, the comment flagged here —• “the next time he does this, he might shoot somebody” — was improper.

However, even assuming that the trial court’s response fell short of satisfying OCGA § 17-8-75, we cannot agree with Wright that the trial court thereby committed reversible error. “[I]t is fundamental that harm as well as error must be shown for reversal.” The transcript shows that the trial court cautioned the prosecutor in connection with raising the specter of Wright’s future dangerousness, and Wright does not cite any other instance of that type of remark. “Furthermore, the trial court charged the jury fully as to what constituted evidence, including instructing [the jury] that evidence did not include the attorneys’ opening statements or closing arguments.” All things considered, including the strength of the state’s evidence in this case, we conclude that it is highly probable that any error in failing to comply with OCGA § 17-8-75 based upon the single comment did not contribute to the verdicts.

(b) Wright contends that the trial court erred by allowing the prosecutor to make other comments that Wright claims were the prosecutor’s personal opinions about the veracity of certain defense witnesses. But Wright’s lawyer failed to lodge any objections thereto, and consequently failed to preserve this contention for purposes of appeal.

4. Wright contends that the trial court erred by failing to charge the jury on robbery as a lesser included offense of the armed robbery charge. We disagree.

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

While Wright acknowledges eyewitness testimony by Thatcher and his (Wright’s) cousin that he used a gun to take Thatcher’s property, he argues that he nevertheless was entitled to a charge on robbery because: (a) the trial testimony given by his cousin’s friend included no mention of a gun; (b) his cousin and her friend gave to police their “written statements which included no mention of a gun”; and (c) testimony by alibi witnesses placed him at home at the time of the charged crimes. Relying on Smith v. State, Wright claims that “these inconsistencies would be enough to require the Court to give the charge on the lesser included offense of Robbery.”

In Smith, where the defendant was charged with armed robbery, this court noted that “[the defendant] and [the victim] gave differing accounts of the circumstances surrounding the theft of the money.” The victim testified that, during the episode in question, the defendant threatened to harm her with a- gun. Notwithstanding, other evidence in Smith warranted a charge on the lesser included offense of theft by taking — specifically, the defendant’s testimony that he saw a $10 bill sticking out from under the victim’s jewelry box and that he grabbed it on his way out the door, together with other evidence “showing] that [the victim] was not aware that [the defendant] took the $10 from her dresser.”

Wright claims that, like the trial witnesses in Smith, the witnesses at his trial gave differing accounts of the circumstances surrounding the theft of the victim’s property. But unlike one of the differing accounts presented in Smith (that of the defendant), none of the evidentiary accounts cited by Wright warranted a jury charge on robbery as a lesser included offense of armed robbery. We consider them in turn.

(a) Trial testimony by the friend of Wright’s cousin. The trial transcript shows that, after this witness recounted that Wright walked away from her and his cousin to approach Thatcher, the prosecutor asked her:

Q: What did you see happen next?
A: After that, me and [Wright’s cousin] start walking like — like going up the hill. And I saw the man, Mr. Thatcher, running down the hill.
Q: Running down that sidewalk?
A: Yes.
Q: And when he was running, how did he look to you?
A: Scared kind of.

Neither the prosecutor nor defense counsel asked this witness whether Wright had used a gun. And under reasoning set forth in Smith v. State, this witness’s account did not constitute evidence that he had not used a gun.

In Smith, the appellant, who was convicted of committing armed robbery (with a knife) at a convenience store, contended that the trial court erred by refusing to charge the jury on robbery by intimidation and theft by taking. The evidentiary basis of his contention was that the tape retrieved from the store’s video surveillance camera depicted the robber’s hands empty and by his sides. This evidence, the appellant argued, was sufficient to show that the robbery was committed without the use of a knife and possibly with the clerk’s cooperation. Concluding otherwise, this court reasoned:

A review of the videotape reveals that the surveillance system recorded still shots, not motion, and cycled automatically through four different camera views. Therefore, the videotape did not record the movements of the robber’s hands during the entire incident, raising the possibility that the surveillance system simply failed to capture the moment when Smith threatened the clerk with a knife. Further, although the robber’s hands appeared open and down by his sides in many of the recorded frames, at times the robber can be seen putting his hands in his pockets, raising the possibility that he concealed the knife in his pocket after displaying it to the clerk. In short, the surveillance system’s failure to clearly record an image of the robber threatening the clerk with a knife does not conflict with the clerk’s testimony that the robber had a knife.

Applying that rationale here, we conclude that this witness’s spotty account of Thatcher’s encounter with Wright did not contradict Thatcher’s and Wright’s cousin’s testimony that Wright used a gun. While this witness gave no specific testimony about whether Wright used a gun, she did describe that Thatcher appeared frightened by his encounter with Wright and that he ran away from Wright. Indeed, “[tjhere is no evidence, and the jury would have had no reason to believe, that [Thatcher] was persuaded to part with [his property] other than by having a [gun] pointed at him.” “The uncontradicted evidence thus showed completion of the greater offense [of armed robbery] so that the charge on the lesser offense [of robbery] was not required.”

(b) The girls’ written police statements. Defense counsel elicited from each girl on cross-examination that her respective written statement to police had not mentioned a gun. But neither police statement was introduced in evidence at trial, and the scant evidence concerning the content of either police statement did not show the completion of any specific offense. Because we will not speculate on the content of either girl’s written recitation, we cannot conclude that either police statement entitled Wright to a jury charge on robbery. “Where, as here, the evidence in the record shows completion only of the greater offense [ ], it is unnecessary for the trial court to charge on the lesser offense[ ].”

(c) Alibi evidence. Wright cites defense evidence that he was at home at the time in question. While that evidence, if believed, would have authorized the jury to conclude that Wright did not commit the charged offense of armed robbery, it did not authorize the jury to conclude that Wright committed the lesser included offense of robbery. ‘Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.”

Given the foregoing, Wright has failed to demonstrate any merit in his contention that he was entitled to a jury charge on robbery.

5. Wright contends that the trial court erred by rejecting his claim that he received ineffective assistance of trial counsel.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review the trial court’s legal conclusions de novo. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, it is not incumbent upon the reviewing court to examine the other prong.”

Wright claims that his lawyer should have objected to certain comments made during the state’s closing argument.

A closing argument is to be judged in the context in which it is made. What is more, a prosecutor is granted wide latitude in the conduct of closing argument. . . ; 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.

At the hearing on Wright’s motion for new trial, Wright’s trial lawyer was asked why he had not objected to various statements made, and the lawyer testified that during the closing argument, the remarks had not seemed egregious. “The matter of when and how to raise objections is generally a matter of trial strategy.” And there is a “strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.”

(a) Wright complains that the following segment of the state’s closing argument improperly urged the jury to consider how its verdicts might affect the community and to consider what message it would be sending to criminals if it allowed him to go free.

If you are okay with innocent people getting victimized, if you are okay with people being afraid to take their children to a swim meet, if you are okay with people being afraid to walk on our city streets, find him not guilty. If you are okay with the defendant being able to come in here and bring these lies to you, deceive you, lie to the police so he can avoid prosecution for this, if you are okay with the fact that, in this county, three eyewitnesses can come in here and unequivocally identify the defendant as the person who committed this crime, you tell the citizens of this county that criminals that are in this county, that they can just come to court and tell a lie and to be found not guilty. You tell them that that’s the kind of place this is. But if you don’t want that to be this place, if you want them to know that this is your city, not theirs, you find him guilty.... You tell the defendant that this behavior and this unprovoked violence won’t be tolerated in this community.

“[I]t is not improper for the state to appeal to the jury to convict for the safety of the community or to curb an epidemic of violence in the community. Nor is it improper for the prosecutor to emphasize to the jury its responsibility to enforce the law.” Given that statements akin to the ones complained of here have been held to be within the bounds of permissible argument, Wright has failed to establish that his counsel performed deficiently for not objecting to this segment.

(b) Citing Mathis v. State, Wright asserts that the prosecutor improperly injected his (Wright’s) financial circumstances into the state’s closing argument by stating: “It’s not justice. It’s not just to allow that person to sit around with no job to go out on the street and rob people.”

But judging the two sentences in the context made, we conclude that the remarks reasonably stemmed from testimony that Wright had no job, typically slept or stayed “in his bed laying around” until noon each day, wanted a vehicle, identified Thatcher’s SUV as one he liked, and so took Thatcher’s keys at gunpoint, and drove away in Thatcher’s SUV. While motive was not an essential element of any of the charged crimes, the prosecutor was entitled to argue that Wright had a motive, as was developed in evidence; further, the prosecutor was entitled to impugn or condemn such motive. Wright has failed to establish that his counsel performed deficiently for not objecting to the two sentences, and nothing in Mathis provides for a different result.

(c) Wright argues that the prosecutor improperly injected into the state’s closing argument his personal beliefs about the veracity of the defense witnesses.

Wright flags a series of remarks. After recounting that certain of Wright’s family members had sought to provide Wright with an alibi, the prosecutor stated, “They are making this up.” The prosecutor added that Wright had called even “his poor mother” to “come up here and lie for him.” Then the prosecutor reminded the jurors of the testimony by Wright’s mother, his aunt, and another relative that, despite recalling that Wright was at home on the morning Thatcher was accosted, they admittedly did not go to police with information that might have cleared Wright of the charges. As the prosecutor put it during closing argument: “They never did that once. The first time this [alibi] information ever surfaced was when it was time for this case to come to court. And why? Because it’s fabricated. It’s not true.”

“It is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness; however, it is not improper for counsel to urge the jury to draw such a conclusion from the evidence.” Taken in context, the flagged remarks fall in the latter category, as the gravamen of this argument was to urge the jury to find from the circumstances that the alibi witnesses had lied. And as language similar to that employed here has been determined to fall within the bounds of permissible argument, Wright has failed to establish that his counsel performed deficiently for not objecting to the flagged remarks.

(d) Finally, Wright claims that the prosecutor improperly made other comments that were not deductions from the evidence. After citing the testimony of Wright’s cousin that Wright was the gunman who took Thatcher’s property, the prosecutor went on to remind the jury that the girl had become upset while on the witness stand testifying against her cousin. The prosecutor added:

She took the hard road. Don’t let that be for nothing. What do you think she will think about doing the right thing in the future if you tell her you don’t believe her? Do you think she will think it is worth doing the right thing again if you tell her, no, you are a liar? If you came up here, you were brave enough to come up here and tell the truth against your family, but, no, sorry. How do you think that would affect her for the rest of her life? It’s just not right.

“[T]he wide range of discussion permitted in closing argument does have its limitations, the first and foremost of which is the longstanding prohibition against the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.” This segment of the state’s closing argument fell outside the wide permissible range. However, even if we assume that defense counsel’s decision not to object was not reasonable trial strategy, but deficient performance, “that is not the end of the inquiry, for deficient performance, alone, does not amount to ineffective counsel. [Wright] must establish that counsel’s inaction was so prejudicial to his defense that, but for the deficiency, there was a reasonable probability that the outcome of the trial would have been different.” Wright has not made this showing.

Wright’s principal defense was that he was not at the scene when Thatcher was accosted. However, not only did his cousin’s testimony place him there perpetrating the crimes as charged, so did Thatcher’s testimony. Additionally, Wright’s cousin’s friend testified that Wright approached Thatcher, and that afterward, Thatcher ran away in fright while Wright sped away in Thatcher’s SUV. When police found Thatcher’s SUV hours later, Thatcher’s keys and cell phone — which had been taken from Thatcher by the armed bandit — were discovered inside the SUV. And one of the numbers dialed with Thatcher’s cell phone since it had been taken from Thatcher was that of Wright’s mother. Given the strength of the evidence against Wright, there is no reasonable probability that the outcome of his trial would have been different had his trial counsel objected to the remarks.

Decided February 11, 2013.

Stanley W. Schoolcraft III, for appellant.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       For purposes of sentencing, the aggravated assault count was merged with the armed robbery count.

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

       OCGA § 16-8-41.

       OCGA § 16-5-21.

       OCGA § 16-11-106.

       OCGA § 16-8-2.

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

        Hayes v. State, 268 Ga. 809, 812-813 (6) (493 SE2d 169) (1997) (citations omitted); but see Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993) (“Leading questions generally are allowed only on cross-examination.”) (citation omitted).

       OCGA § 24-9-63 (2010).

        Bell v. State, 294 Ga. App. 779, 781 (3) (670 SE2d 476) (2008) (citation and footnote omitted) (finding no abuse of discretion in allowing a prosecutor to ask leading questions of the 14-year-old witness, who was often nonresponsive, spoke very softly, and exhibited signs of timidity and fear); Cherry v. State, 199 Ga. App. 879, 879-880 (1) (406 SE2d 531) (1991) (finding no abuse of discretion in allowing a prosecutor to ask leading questions of the 14-year-old reticent victim).

       See Hayes, supra; Bell, supra; Cherry, supra.

       On cross-examination of Wright’s mother, the state elicited her testimony that Wright’s name was not “Terry Glenn Wright.”

        Rucker v. State, 291 Ga. 134, 137 (3) (728 SE2d 205) (2012) (citation omitted).

        Nichols v. State, 282 Ga. 401, 403 (2) (651 SE2d 15) (2007) (citation and punctuation omitted); see Mims v. State, 314 Ga. App. 170, 174 (2) (723 SE2d 486) (2012) (evidence is relevant if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or throw light upon a material issue is relevant).

        Nichols, supra (citations omitted; emphasis supplied).

        See Brooks v. State, 281 Ga. 514, 517 (3) (640 SE2d 280) (2007) (“The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases.”) (citation omitted).

       See Evans v. State, 288 Ga. 571, 574-575 (5) (707 SE2d 353) (2011) (“Evidence as to whether a defendant tried to evade capture is admissible as evidence of flight,” and “evidence of flight is relevant because a defendant’s efforts to elude capture arguably provide circumstantial evidence of guilt.”) (citations and punctuation omitted); Woolfolk v. State, 282 Ga. 139, 140 (2), n. 2 (644 SE2d 828) (2007) (“Flight is always a circumstance which may be shown and a jury is authorized to take into account in determining guilt or innocence of an accused, and evidence thereof is not inadmissible because it incidentally puts the defendant’s character in issue.”) (citation and punctuation omitted); see generally Rucker, supra at 136-137 (2) (finding trial court’s admission of evidence was not an abuse of discretion, where circumstances of attempted flight “arguably” bore on material issue).

        Scruggs v. State, 273 Ga. 752, 753 (2) (545 SE2d 888) (2001) (finding that the testimony that appellant had been arrested was not prejudicial because there was no testimony that the arrest was for anything other than the charges for which appellant was on trial); Keller v. State, 231 Ga. App. 546, 547-548 (4) (499 SE2d 713) (1998) (finding no abuse of discretion in the admission of defendant’s fingerprint record, where record bore an arrest date that was after the date of the charged offense because such record did not necessarily imply that defendant was ever arrested for another offense); accord Jackson v. State, 284 Ga. 484, 486 (2) (668 SE2d 700) (2008) (noting that “evidence that an accused has been confined in jail in connection with the case at issue does not place his character in evidence”) (citations and punctuation omitted).

        Evans, supra; Woolfolk, supra; Scruggs, supra; Keller, supra.

       See Zamora v. State, 291 Ga. 512, 514 (3) (731 SE2d 658) (2012) (appellant’s challenge to admissibility of certain evidence was waived, where no trial objection to the admission of the evidence was made).

        Wyatt v. State, 267 Ga. 860, 864 (2) (b) (485 SE2d 470) (1997).

       Id. at 864-865 (2) (b) (footnote omitted).

       See id. (holding that remarks that if the jury returned a verdict of not guilty, appellant could “do it again,” “get his gun back,” and “ride down on the elevator [with the jurors] as they leave the courthouse” constituted improper “future dangerousness” comments).

       See O’Neal v. State, 288 Ga. 219, 220-222 (1) (702 SE2d 288) (2010) (concerning duties contemplated by OCGA § 17-8-75 for trial court).

       Id. at 223 (2) (citations and punctuation omitted); see Arrington v. State, 286 Ga. 335, 345 (16) (a) (687 SE2d 438) (2009) (alleged error under OCGA § 17-8-75 “is subject to harmless error analysis”).

        Arrington, supra at 346 (16) (a); see O’Neal, supra at 223 (2).

       See O’Neal, supra (finding no reversible error, when all things — including court’s instruction that closing arguments of counsel did not constitute evidence and the strength of the state’s evidence — were considered); Arrington, supra at 345 (16) (a) (finding harmless error in trial court’s failure to adequately rebuke state and admonish jury in response to state’s misstatement of evidence during closing argument, where improper statement consisted of one sentence, was interrupted by defense counsel’s prompt objection, and trial court immediately observed that the “jury w[ould] remember the evidence,” and where other inculpatory evidence rendered it highly probable that the error did not contribute to the guilty verdicts); Wyatt, supra at 865 (2) (b) (“Considering the overwhelming evidence of appellant’s guilt, which included eyewitness testimony, it is highly unlikely that this single portion of the closing argument contributed to the guilty verdict.”) (footnote omitted).

        Johnson v. State, 288 Ga. 803, 808 (5) (708 SE2d 331) (2011) (holding that failure to object to comments made during closing argument waived issue, and further declining to review issue under “plain error” analysis); Moore v. State, 288 Ga. 187, 191 (3) (702 SE2d 176) (2010) (concluding that whether the state made improper comments during closing argument was not preserved for appeal, where the defendant failed to object to the prosecutor’s closing argument when made).

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

       244 Ga. App. 667 (536 SE2d 561) (2000).

       Id. at 668 (1).

       Id.

       Id.

       2 52 Ga. App. 552 (556 SE2d 826) (2001).

       Id.

       Id. at 553.

       Id.

       Id. at 553-554 (citation omitted; emphasis supplied); see Arnold v. State, 238 Ga. App. 314, 315 (2) (518 SE2d 716) (1999).

        Lightfoot v. State, 227 Ga. App. 605, 607 (490 SE2d 177) (1997) (citation and punctuation omitted).

        Clark v. State, 279 Ga. 243, 247 (7) (611 SE2d 38) (2005) (citation and punctuation omitted).

       Specifically, Wright’s cousin was asked, “Anywhere in this written statement do you mention a gun?” The girl said, “No.” Later, she was asked, “So that in your statement you never mentioned a gun; correct?” She answered, “Yes.” Specifically, the other girl was asked, “In that statement do you ever mention or claim that Mr. Wright or the perpetrator of this crime, whoever it is, had a gun in their hand?” She answered, “No, sir.”

       See Smith, supra, 252 Ga. App. at 552-554 (refusing to speculate that the defendant did not use a knife to commit robbery, where the evidence adduced failed to account for the movement of the robber’s hands during the entire incident). Cf. Rogers v. State, 289 Ga. 675, 676-677 (2) (715 SE2d 68) (2011) (concluding that the appellant, charged with the murder of victim by gunshot, was entitled to a jury charge on lesser included offense of involuntary manslaughter, where appellant’s police statement recounted that he went to victim’s residence for sole purpose of instigating a fist fight and that victim was killed unintentionally by an accidental discharge of victim’s gun, and where appellant never admitted that he had a gun or any other kind of deadly weapon); Edwards, supra at 132-133 (concluding that the appellant, charged with armed robbery at a residence, was entitled to a jury charge on lesser included offense of theft by taking, where appellant’s police statement recounted that he had broken into the residence to steal drugs and money, but that the guns discovered at the residence by police were already at the residence when he arrived).

       See Smith, supra, 252 Ga. App. at 552-554.

        Clark, supra at 247 (7) (citation and punctuation omitted; emphasis supplied); Smith, supra, 252 Ga. App. at 552-554.

        Mason v. State, 267 Ga. 314, 315 (3) (477 SE2d 568) (1996) (citation and punctuation omitted).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 88 (4).

        Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011) (citation omitted).

        Scott v. State, 290 Ga. 883, 885 (2) (725 SE2d 305) (2012) (citations omitted).

        Spencer v. State, 287 Ga. 434, 439-440 (4) (696 SE2d 617) (2010) (noting trial counsel’s explanation for not obj ecting to closing argument included his “general rule” not to obj ect during closing argument unless opposing counsel says “really something extremely over the top” so as to avoid getting objections during his own closing argument, and that trial counsel had not felt that the prosecutor’s argument had risen to that level). Although Wright cites his trial attorney’s testimony at the new trial hearing that, in retrospect, he believed that he should have objected to some of the remarks, “[i]t is of no moment that following trial, the attorney might regret the decision to remain silent, for effectiveness is not judged by hindsight or result.” Robinson v. State, 278 Ga. 31, 36 (3) (c) (597 SE2d 386) (2004) (citation omitted); see Braithwaite v. State, 275 Ga. 884, 886 (2) (b) (572 SE2d 612) (2002) (appellate court “will not use hindsight to second-guess” trial counsel’s decision for not objecting to state’s closing argument).

        Robinson, supra (citation and punctuation omitted).

        Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002) (citation and punctuation omitted); see Strickland, supra at 689 (III) (A) (explaining that a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance).

        Clark v. State, 285 Ga. App. 182, 184 (2) (645 SE2d 671) (2007) (footnotes omitted); see McClain v. State, 267 Ga. 378, 385 (4) (a) (477 SE2d 814) (1996) (“A prosecutor may appeal to the jury to convict for the safety of the community or to send a message to others that criminal activities will be punished.”).

       See, e.g., Spencer, supra at 439 (4) (finding no deficient performance for not objecting to prosecutor’s argument: “This is your community and these are your streets, and you can say yes to this or you can say no to this____Say no to this on behalf of our community. Find the defendant guilty as charged based on the evidence.”); Gibson v. State, 283 Ga. 377, 381 (8) (659 SE2d 372) (2008) (finding it permissible for prosecutors to tell jury that it had an “opportunity to define what is acceptable in [the] community’ and to urge the jury to speak on the community’s behalf and rid it of robbers and murderers); Laney v. State, 271 Ga. 194, 198(10) (515 SE2d 610) (1999) (finding statement “this is your community” acceptable); Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993) (holding that it is not improper for a prosecutor to appeal to the jury to convict for the safety of the community or to convict so as to send a message to others that criminal activities will not go unpunished; the state may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard).

       276 Ga. App. 587, n. 1 (623 SE2d 674) (2005) (“Evidence of the wealth or worldly circumstances of a party is never admissible, except in cases where position or wealth is necessarily involved.”) (citation and punctuation omitted).

        Head v. State, 276 Ga. 131, 135 (6) (575 SE2d 883) (2003) (“In making a closing argument, it is counsel’s right to impugn or condemn motives.”) (citation and punctuation omitted); Wade v. State, 258 Ga. 324, 326-327 (5) (368 SE2d 482) (1988) (recognizing that motive for the charged crime was proper subject matter for closing argument); Conner v. State, 251 Ga. 113, 122 (6) (303 SE2d 266) (1983) (recognizing that counsel may “condemn motives, so far as they are developed in evidence”).

        Humphrey v. Lewis, 291 Ga. 202, 215 (V) (A) (ii) (728 SE2d 603) (2012) (citation and punctuation omitted).

       See Robinson, supra (determining that, where complained-of statements by prosecutor were preceded by a lengthy list of inconsistencies presented by the witness’s testimony, which brought witness’s veracity into question, gravamen of argument was to urge jury to find from inconsistencies that the witness had lied); Head, supra (“In making a closing argument, it is counsel’s right to . . . assail the credibility of witnesses by circumstances.”) (punctuation and footnotes omitted). Compare Bolden v. State, 272 Ga. 1-2 (525 SE2d 690) (2000) (determining that the solicitor improperly commented on the credibility of the state’s witness by stating, ‘You look at what you heard from the [state’s witness], who I thought was very credible.”).

       See, e.g., Robinson, supra (finding no deficient performance for failing to object to prosecutor’s argument: “that piece doesn’t fit, because it’s absolutely a lie. Not only is he a thief himself, but he’s a liar, and he’s lied to you today from the witness stand. His story about what happened just does absolutely not fit.”); Braithwaite, supra at 887 (5) (finding that the prosecutor’s remark during closing argument that “half the stuff out of [an accomplice’s] mouth — I don’t think he could tell the truth if he wanted to” — was a permissible comment on the inconsistencies shown among that witness’s police statements, guilty plea, and trial testimony); Emberson v. State, 271 Ga. App. 773, 776 (3) (611 SE2d 83) (2005) (determining that prosecutor’s references to defendant and other defense witnesses as “liars” who told “lies” were permissible, where record showed that prosecutor was arguing that the jury should conclude, based on the evidence and deductions therefrom, that the defendant and those witnesses were lying); Newsome v. State, 149 Ga. App. 415, 416 (3) (254 SE2d 381) (1979) (finding permissible the prosecutor’s reference during closing argument to certain defense witnesses as “bald face liars,” where the evidence authorized the jury to conclude that said witnesses were in fact untruthful).

        Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994) (citations and punctuation omitted).

       See Stroud v. State, 284 Ga. App. 604,616-617 (3) (h) (644 SE2d 467) (2007) (condemning prosecutor’s inappropriate remarks to jury that returning a not guilty verdict would be tantamount to calling the testifying victims liars); Hunt v. State, 268 Ga. App. 568, 574-575 (5) (602 SE2d 312) (2004) (finding that it was inappropriate for prosecutor to tell jurors, “For you to go back in that jury room and return a verdict of not guilty means you must be prepared to come out and look those boys in the eye and call them liars; because that’s what it does.”).

       See Braithwaite, supra at 886 (2) (instructing that an appellate court will not use hindsight to second-guess trial counsel’s decision and that an appellate court’s task is “to determine whether, in the throes of closing argument, no reasonable attorney, listening to the inflection of the speaker’s voice and judging the jurors’ reactions, would choose to remain silent instead of objecting and calling attention to the improper argument”).

        Lloyd v. State, 280 Ga. 187, 192 (2) (d) (ii) (625 SE2d 771) (2006) (citations omitted); see Miller v. Miller, 285 Ga. 285, 286 (676 SE2d 173) (2009) (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”), quoting Strickland, supra at 694.

        Stroud, supra at 618 (3) (h) (concluding that trial counsel’s failure to object was deficient performance, but prejudice prong was not satisfied, given overwhelming evidence against defendant); see Braithwaite, supra (concluding that failure to object did not prejudice defense, where evidence was overwhelming and defense counsel sought to mitigate any prejudice arising from argument); see generally Hardeman v. State, 281 Ga. 220, 222 (635 SE2d 698) (2006) (“When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”), quoting Strickland, supra at 695 (III) (B).