author: Boggs, Judge.

text:
    A16A0880.
    TAYLOR v. THE STATE.
    (792 SE2d 101)
   Boggs, Judge.

In the third appearance of this case before this court, Harry Taylor appeals from his convictions of six counts of aggravated child molestation, eleven counts of child molestation, eleven counts of sexual exploitation of children, one count each of aggravated sexual battery, sexual battery, and criminal attempt, involving fifteen minor victims. He contends that the trial court erred in (1) its balancing of the speedy trial factors required by Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992); and (2) denying his motion to suppress based upon deficiencies in the search warrant issued for his home. For the reasons explained below, we affirm.

1. Taylor contends that the trial court abused its discretion in its second ruling on the speedy trial issue in: (a) weighing the length of the delay lightly against the State; (b) weighing the reason for the delay benignly against the State; (c) weighing the assertion of his right to a speedy trial heavily against him; (d) weighing the prejudice factor heavily against him; and (e) balancing of the four factors to conclude that no speedy trial violation occurred.

Application of the Barker-Doggett factors

to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one. Under our precedents, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.

(Citations and punctuation omitted.) State v. Alexander, 295 Ga. 154, 155-156 (758 SE2d 289) (2014). Basedupon this deferential standard of review, we find no merit in Taylor’s argument that the trial court should have granted his plea in bar.

In Taylor v. State, 334 Ga. App. XXVIII (Case No. A15A1305) (November 2, 2015) (unpublished) (“Taylor II”), we summarized the relevant facts concerning Taylor’s speedy trial claim as follows:

The record reflects that Taylor was [first] arrested on July 24, 2008. He was first indicted on October 15, 2008; however, due to what the State admitted were errors in the first indictment, Taylor was reindicted on January 7, 2009. And discovery in his case ensued from October 31, 2008, to August 2, 2010.
On January 30, 2009, Taylor filed, among numerous other motions, a motion to suppress, which he later amended and recast on August 12, 2010. The judge first assigned to handle Taylor’s case held hearings on this motion on August 16, 18, and 30, 2010, but did not immediately issue a decision. Additionally, in October 2009, Taylor consented to a continuance due to the still ongoing discovery, and he alleged that the State’s compliance was deficient as to 19 different, items. Thereafter, Taylor consented to three more continuances.
In February 2010, Taylor consented to a continuance to allow for specially set motions proceedings and due to his divorce trial. Two months later, in April 2010, Taylor consented to a continuance again because both he and the State believed the case would require one to two days to hear all pretrial motions and that the trial itself would last longer than one week. And in February 2011, Taylor consented to a continuance due to the continued unavailability of a sufficiently long trial calendar and because he was still awaiting a ruling on his motion to suppress. Finally, on December 16, 2011, the first-assigned judge denied Taylor’s [amended and recast] motion to suppress evidence.
When Taylor received, via e-mail, the court’s order denying his motion to suppress, he learned the identity of the judge’s staff attorney and recognized that she was a former assistant district attorney who had previously been employed with the Gwinnett County District Attorney’s office and had some involvement in his case. Therefore, on December 20, 2011, Taylor filed a motion to recuse the judge. This motion was granted on February 17, 2012. Then, on February [22], 2012, the second-assigned judge voluntarily recused without explanation in accordance with Uniform Superior Court Rule 25.7, as did the third-assigned judge on February 27, 2012.
On February 27,2012, Taylor filed a motion for a de novo hearing and review of his previously denied motion to suppress. And on March 12, 2012, the fourth-assigned judge voluntarily recused without explanation. On March 15, 2012, the fifth-assigned judge set a hearing on Taylor’s February 27, 2012 motion for April 5, 2012. But then, after the hearing, on April 6, 2012, the [fifth]-assigned judge recused at the State’s request after realizing a potential conflict of interest.
On April 18, 2012, the [sixth]-assigned judge set the case down for a May 29 status hearing and for trial on August 6, 2012. After denying a motion to recuse the [sixth]assigned judge, on June 15, 2012, that judge granted Taylor’s request for a de novo hearing on his amended and recast motion to suppress and scheduled same for July 10, 2012. Thereafter, on July 27, 2012, the [sixth]-assigned judge denied Taylor’s recast and amended motion to suppress.
On July 26, 2012, Taylor for the first time asserted his right to a speedy trial when he filed a plea in bar and/or motion to dismiss, alleging that his Sixth Amendment right to a speedy trial had been violated. Following a hearing on September [6], 2012, Taylor’s motion was denied on September 26, 2012 by [a seventh]-assigned judge. On October 16, 2012, Taylor filed a direct appeal to this denial, but in light of the Supreme Court of Georgia’s decision in Sosniak v. State, [292 Ga. 35, 40 (2) (734 SE2d 362) (2012),] his appeal was dismissed on February 14, 2013.
Following the case’s return to the trial court, Taylor filed, on November 21, 2013, a second amended motion to suppress, raising new arguments as to why the evidence against him should be suppressed. This motion was denied on April 28, 2014. Thereafter, Taylor waived his right to a trial by jury and, following a . . . bench trial [based upon stipulated facts and admitted photographs], was adjudicated guilty of the offenses set forth supra.

(Footnotes omitted.) Taylor II, supra at 2-5. In Taylor II, this court issued a 26-page unpublished opinion in which we exhaustively considered the trial court’s rulings on each of the Barker factors and remanded the case to the trial court “to exercise its discretion again using properly supported factual findings and the correct legal analysis.” (Punctuation and footnote omitted.) Id. at 25. In a 14-page order, the trial court diligently and faithfully addressed each of the deficiencies outlined by this court in Taylor II.

Having outlined the procedural history of this case, we now examine the trial court’s analysis of each of the Barker factors.

(a) Length of Delay. In Taylor II, we instructed the trial court to

assess whether the delay in Taylor’s case was uncommonly long and/or excessive, keeping in mind that a delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. The court must then consider the weight of this factor.

(Punctuation and footnotes omitted.) Id. at 11. The trial court concluded “that the delay in this case was uncommonly long and weigh[ed] this factor against the state.” It then exercised its discretion to “weigh [ ] this factor lightly against the state given the amount of information to be searched on Taylor’s computers, the number of child victims, and the number of counts charged.”

As the trial court recognized, the length of “delay that can be tolerated in a particular case depends to some extent on the complexity and seriousness of the charges in that case.” (Citations omitted.) State v. Buckner, 292 Ga. 390, 393 (3) (a) (738 SE2d 65) (2013). And there is no bright-line rule that all uncommonly long delays must be weighed heavily against the State. Milner v. State, 329 Ga. App. 654, 658 (2) (a) (765 SE2d 790) (2014) (physical precedent only). See also Stewart v. State, 310 Ga. App. 551, 553-554 (2) (a) (713 SE2d 708) (2011) (trial court did not abuse discretion by declining to weigh five-year-long delay heavily against State). As this case involved a 32-count indictment with 15 child victims and voluminous computerized information, we cannot conclude that the trial court abused its discretion by weighing the length of the delay lightly against the State.

(b) Reason for Delay. Another reason for our remand of this case back to the trial court related to its analysis of the reason for the delay in trying Taylor. Taylor II, supra at 12-16. We stated:

Thus, although the trial court made some findings of fact as to the reasons for the delay, it ignored others. The court also failed to conclude whether this factor weighed against either the State or Taylor, or, in the alternative, was neutral as against both sides.
The trial court’s analysis mentions the five months between Taylor’s arrest and re-indictment, but it does not weigh this period against the State or Taylor. Then, the trial court purports to weigh the entire fifteen-and-one-half month delay to obtain a ruling on Taylor’s motion to suppress against the State before vaguely stating that Taylor “is not blameless for the delay,” apparently holding Taylor responsible for continuances and pretrial motions. The trial court then summarily weighs the fact that Taylor consented to continuances for approximately one year against him, but then fails to assess the reasons for these continuances before doing so. Additionally, though the trial court finds that some of the delay was due to the negligence of the State, it does not specify what amounted to negligence or the amount of weight this conclusion receives. Finally, the trial court fails to indicate whether it considered the delay between the initial denial of Taylor’s motion to suppress by the first-assigned judge and the denial of his plea in bar/motion to dismiss — a period that accounts for approximately nine months of the fifty-month delay.
Given the scant findings of fact in support of the trial court’s decision, we are constrained to remand so that the court can reconsider the circumstances giving rise to the delay and reassess the causes for the delay with regard to the principles outlined supra before reweighing this factor.

(Footnotes omitted.) Id. at 14-16.

Upon remand, the trial court separately analyzed and weighed the following periods of delay: the five months between arrest and re-indictment; the 15-month delay for a ruling on Taylor’s motion to suppress; delays from continuances and the role incomplete discovery played in the continuance requests; and delays from multiple motions to recuse; delay from a second motion to suppress; and delay from a change in defense counsel. It then concluded that the portions of the delay attributed to the State weighed benignly against the State and that the portions of the delay attributed to Taylor should also be weighed benignly.

Taylor contends the trial court erred by failing to weigh the reason for the delay in this case heavily against the State. It is true, as Taylor asserts, that “the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice goes. Thus, our toleration of such negligence varies inversely with its protractedness.” (Citation, punctuation and footnote omitted.) Grizzard v. State, 301 Ga. App. 613, 615-616 (2) (b) (688 SE2d 402) (2009). For example, in Grizzard, we held

if ever there were a case in which the weight assigned to official negligence should be compounded, this is the case.... [T]he eight-year delay here — even if reduced by one year to account for Grizzard’s successful appeal — mandated that the trial court should have compounded the weight and weighed this factor heavily against the State, not merely benignly.

(Emphasis in original.) Id. at 616 (2) (b). In that case, eight years elapsed before the defendant was brought to trial, and for six of those eight years, there was a complete absence of any activity on the part of the State. In contrast, the longest period of complete inactivity on Taylor’s case was approximately one year. And in numerous other cases, we have concluded that a trial court did not abuse its discretion by weighing a lengthy delay caused by the State’s negligence lightly or benignly against the State. See Milner, supra, 329 Ga. App. at 658-659 (2) (b) (no abuse of discretion in weighing ten-year delay benignly against State); Moore v. State, 314 Ga. App. 219, 221-222 (2) (b) (723 SE2d 508) (2012) (no abuse of discretion in weighing benignly against State an 84-month delay caused by its negligence); Stewart, supra, 310 Ga. App. at 555-556 (2) (b) (trial court did not abuse discretion by failing to weigh heavily against the State a five-year delay largely attributable to the State’s negligence).

Based upon the unusual facts and circumstances of this case and, in particular, the necessity for sophisticated software to conduct a forensic examination of Taylor’s computers and the necessity for five trial judges to recuse, the trial court did not abuse its discretion by failing to weigh this factor heavily against the State. See Stewart, supra, 310 Ga. App. at 555-556 (2) (b).

(c) Assertion of Speedy Trial Right. In Taylor II, we concluded that the trial court did not abuse its discretion “by weighing this factor against Taylor when the record demonstrates that the State was responsive to and ultimately compliant with Taylor’s discovery requests.” (Footnote omitted.) Id. at 19 (1) (b) (iii). We remanded, however, for the trial court to clarify whether it “simply weighed this factor against Taylor or heavily weighed it against him.” Id. at 20 (1) (b) (iii). The trial court subsequently clarified that it weighed this factor heavily against Taylor and declined to exercise its discretion to mitigate the weight based upon the length of time it took the State to respond to Taylor’s discovery requests.

We find no merit in Taylor’s assertion in this appeal that the trial court was required to mitigate the weight of this factor. The Supreme Court of Georgia has “acknowledged that the weight to be attributed to this factor may be mitigated in some cases, and whether the circumstances of a particular case warrant any mitigation is a question committed to the sound discretion of the trial court. [Cits.]” Buckner, supra, 292 Ga. at 397 (3) (c). Here, the record shows that Taylor received all of the State’s discovery by August 2010, but did not demand a speedy trial until July 2012, almost two years later. Under these circumstances, the trial court was authorized to find Taylor’s claim that his failure to file a speedy trial demand should be mitigated by the State’s delay in providing discovery “unavailing.” See Williams v. State, 290 Ga. 24, 27 (3) (717 SE2d 640) (2011) (affirming trial court’s decision to weigh this factor heavily against the defendant even though defendant contended he could not have asserted right sooner because discovery was incomplete); Williams v. State, 300 Ga.App. 797, 798(c) (686 SE2d 407) (2009) (trial court authorized to conclude no connection between State’s failure to comply with discovery requests and defendant’s late assertion of right to speedy trial).

(d) Prejudice. In Taylor II, we affirmed the following conclusions of the trial court with regard to the prejudice factor: Taylor suffered oppressive pretrial incarceration; he did not suffer undue concern or anxiety; and his defense was not impaired by the delay Id. at 20-24 (1) (b) (iv). We remanded, however, for the trial court “to ultimately determine whether Taylor suffered prejudice and weigh this factor as a whole.” Id. at 24 (1) (b) (iv). The trial court complied with this direction by stating in its second order:

[T]here is no evidence of any prejudice to Taylor beyond the oppressive pre-trial incarceration. While that first sub-factor weigh[ ]s against the State, the other two sub-factors must weigh[ ] against Taylor. When combining the three sub-factors[,] this court holds that the pretrial incarceration, while oppressive, does not carry the day for Taylor. . . . [T]he incarceration did not affect Taylor’s ability to communicate with his lawyer, did not prevent him from reviewing the case file, did not prevent him from completing his paralegal course, and did not result in the loss of any evidence [;] therefore the first factor must weigh lightly against the State. The second sub-factor, since there is no evidence that Taylor experienced . . . undue anxiety or concern as a result of his incarceration[,] this factor must weigh heavily against Taylor. Finally, in the third sub-factor, Taylor has presented no evidence to support any conclusion that his case has been impaired by the delay[;] thus, this factor must weigh heavily against Taylor.... Based upon the foregoing, the prejudice factor must weigh heavily against Taylor.

In this appeal, Taylor contends that this trial court abused its discretion by failing to weigh this factor heavily against the State. We disagree. It is well established that of the three factors considered when determining prejudice to the defendant, harm to the accused’s defense is the most serious and important. See Brewington v. State, 288 Ga. 520, 524 (3) (b) (iv) (705 SE2d 660) (2011); Weis v. State, 287 Ga. 46, 55 (1) (d) (694 SE2d 350) (2010). And while Taylor was placed in solitary confinement, there is no evidence that he was exposed to substandard conditions while incarcerated, such as a lack of adequate food, climate control, proper medical care, or cleanliness. See Weis, supra (noting substandard conditions as means of proving oppressive pretrial incarceration); State v. Ariegwe, 338 Mont. 442, 478-479 (I) (C) (4) (i) (167 P3d 815) (2007) (providing definition of substandard conditions for speedy trial analysis). And as recognized by our Supreme Court, oppressive pretrial detention, standing alone, does not require “an automatic inference of enough prejudice to balance that factor in a defendant’s favor without proof of sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.” (Citation and punctuation omitted.) Boseman v. State, 263 Ga. 730, 733 (1) (d) (438 SE2d 626) (1994), overruled on other grounds, Sosniak, supra, 292 Ga. at 40 (2). Similarly, solitary confinement does not mandate a finding that the prejudice prong of the speedy trial analysis be weighed heavily against the State. Cf. Wilson v. State, 148 Md. App. 601, 638-639 (II) (814 A2d 1) (2002). Accordingly, we con-elude that the trial court did not abuse its discretion with regard to the prejudice factor. See Hall v. State, 240 Ga. App. 356, 358 (3) (d) (523 SE2d 409) (1999).

(e) Balancing the Factors.

At the conclusion of its detailed order, the trial court carefully and thoroughly balanced the Barker factors and explained its reasons for concluding that Taylor’s right to a speedy trial had not been violated:

When combining the weight given to each factor, this court holds the first prong, (1) presumptive prejudice, required the court to balance the remaining Barker factors, (2) the length of the delay, based upon Georgia precedent^] this court is constrained to weigh this prong against the State, however, this court weighs this prong lightly or benignly against the State for the reasons stated, supra, (3) the reason for the delay, this court holds that both the State and Taylor were partly responsible for portions of the delay in this case, for the reasons stated, supra, this court weighs this prong lightly or benignly against the State and Taylor for their respective roles in the delay, (4) prior assertion of the right to a speedy trial, this court weigh[ ]s this factor heavily against Taylor. Taylor’s argument that he could not assert his right to a speedy trial because of delayed discovery is unavailing to this court and, thus, this factor weighs heavily against Taylor, (5) prejudice to the defendant, despite what the court feels was oppressive pre-trial incarceration, this court holds that there is no evidence that Taylor suffered any undue anxiety or concern, or that Taylor’s case was prejudiced by the delay or the incarceration, thus, this court weighs this factor heavily against Taylor.
When weighing all of the factors together, this court concludes that Taylor has failed to satisfy the Barker-Doggett test and hereby DENIES Taylor’s plea in bar and demand for discharge and acquittal.

While we recognize that this was a case involving lengthy solitary confinement before trial, “we must be mindful that no one factor is sufficient to sustain a speedy trial claim” and that the trial court is “required to engage in a difficult, and sensitive balancing process of all four factors.” (Citations and punctuation omitted.) Franklin v. State, 305 Ga. App. 354, 362 (1) (e) (699 SE2d 575) (2010). Based upon the complexity of the multi-count indictment involving 15 separate victims, Taylor’s failure to timely assert his right to a speedy trial, and the lack of any actual prejudice to his defense, we cannot say that the trial court’s ultimate conclusion amounts to an abuse of discretion. See Jenkins v. State, 294 Ga. 506, 513 (2) (c) (755 SE2d 138) (2014); Boseman, supra, 263 Ga. at 734 (1) (e). Additionally, to the extent it could be concluded that the trial court failed to expressly consider presumed prejudice when balancing and weighing the factors, we conclude that a second remand would serve no purpose because even taking into account the presumed prejudice, the trial court “would have had no discretion to reach a different judgment. [Cits.]” Ward v. State, 325 Ga. App. 890, 894 (2) (e) (756 SE2d 21) (2014). See also Phan v. State, 290 Ga. 588, 596 (1) (e) (723 SE2d 876) (2012); Leopold v. State, 333 Ga. App. 777, 784 (2) (e) (777 SE2d 254) (2015).

2. Taylor asserts that the trial court erred by denying his motion to suppress for two reasons: (a) the affidavit submitted with the application for a search warrant of his home failed to establish that Taylor resided at the address to be searched; and (b) the affidavit failed to establish that evidence of child molestation and sexual battery would be on the computers, cameras, and electronic storage devices listed on the warrant. We disagree.

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate’s decision in this case is to determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrants. A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. The test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the “factual and practical considerations of everyday life on which reasonable and prudent men act.” Moreover, even doubtful cases should be resolved in favor of upholding a warrant.

(Citations and punctuation omitted.) State v. Hunter, 282 Ga. 278 (646 SE2d 465) (2007).

(a) Taylor’s argument with regard to the affidavit’s failure to establish that he resided at the address listed as the location to be searched overlooks the fact that the detective in this case submitted a combined “AFFIDAVIT AND APPLICATION FOR A SEARCH WARRANT,” the entirety of which was under oath, as well as an “Attachment A,” which was also under oath. In our view, the trial court correctly concluded “that a sufficient nexus, or connection, between the items sought and the place to be searched, existed so as to support a conclusion of probable cause for issuance of the search warrant for the residence.” As the trial court explained:

The supporting affidavit and application for search warrant here are combined into one document, and specific facts, as provided by victim’s statements, connecting this Defendant to the crimes of Child Molestation, and/or Sexual Battery committed at Defendant’s residence are detailed in “Attachment A,” expressly incorporated into the affidavit and application by reference. The affiant avers in “Attachment A” that, based on the recited facts, probable cause exists to ‘Telieve that a crime has been committed and that there may be evidence to support such crimes at said location.”
Page 2 of the affidavit and application provides that “the facts establishing probable cause in searching for and seizing the foregoing specifically described person(s), property, items, articles, instruments connected with the foregoing crime(s) at the location described herein are: SEE ATTACHMENT ‘A.’ ”
This express language is immediately followed by the physical address and description of the location.

(Emphasis supplied.)

Although our research revealed no Georgia case addressing a similar alleged deficiency in a warrant application, other jurisdictions have applied a common-sense approach to resolving the issue when the affidavit fails to state explicitly that an address to be searched is the residence of the suspect. See State v. Trujillo, 150 N. M. 721, 726-728 (266 P3d 1) (2011); United States v. Hunter, 86 F3d 679, 681-682 (I) (7th Cir. 1996). These courts have concluded that when the affidavit describes only one place connected to the suspect, such as a residence, and lists a specific address to be searched, a connection between the address described where evidence can be found and the probable cause outlined in the affidavit “is the only logical conclusion supported by a common-sense reading of the affidavit.” Trujillo, supra, 150 N. M. at 726, citing Hunter, supra, 86 F3d at 682. We find the following reasoning by the New Mexico Supreme Court persuasive:

Barring a hypertechnical reading of the affidavit, an inference that the residence described is the same as the residence where evidence can be found, is much more reasonable than its opposite — that the residence described in such painstaking detail actually has no relationship to the events of this case. We think the reviewing judge was well within his rights to draw the rational inference and avoid the irrational. Understandably, the reviewing judge was concerned that “there was no indication in the affidavit that Defendant lived at this address, that he was presently at that address or had been at that address sometime in the past.” However, considered in context, what else could the detective have intended to say? More significant still, what other inference could the issuing judge reasonably have come to?
Simply put, it is a stretch to draw the opposite inference; one must work hard not to infer that 1208 Juanita SW is “the residence” where all these criminal acts occurred and where incriminating evidence can be found. Deference is due under the circumstances, and his decision to issue the warrant is supported by a substantial basis in the record.

(Punctuation and emphasis omitted.) Trujillo, supra, 150 N. M. at 727. For these reasons, the trial court did not err by denying Taylor’s motion to suppress on this ground.

(b) We find no merit in Taylor’s contention that the application and affidavit failed to establish probable cause that evidence of the offenses of child molestation and sexual battery would be found on the computers, cameras, and electronic storage devices listed in the warrant. Taylor asserts that there is no information in the affidavit connecting his computer “in any way to the alleged conduct” and that the detective misrepresented in her affidavit that one of the victims described Taylor as having a digital camera.

“[A]n affidavit is presumed valid in the absence of evidence that it contained deliberate falsehoods, was made with reckless disregard for the truth, or that the affiant consciously omitted material facts that, if included, would have indicated the absence of probable cause.” (Citation, punctuation and footnote omitted.) Jarrett v. State, 299 Ga. App. 525, 533 (7) (c) (683 SE2d 116) (2009). Here, the detective stated under oath in “Attachment A” that a victim stated, in reference to photographs taken by Taylor while boys were undressing: “Mr. Taylor showed him one of the pictures on the screen on the back of a black digital camera.” In its order denying Taylor’s motion to suppress, the trial court found:

Decided October 11, 2016

Brody Law Firm, Bernard S. Brody, for appellant.

[T]he evidence showed that Defendant took at least one photograph of the victim and showed said photograph to the victim. Such evidence demonstrates the Defendant’s ability to record photographs. . . . The lack of an averment stating that child molesters generally use the computer in furtherance of their crime does not negate the connection and sufficiency here.

As the State eloquently argues in its brief, there is no evidence that the detective’s affidavit contained deliberate falsehoods or was made with a reckless disregard for the truth:

While the detective said that [the victim] never said the words “digital camera,” she also testified during cross-examination, that [the victim] said he was able to see his picture on the back of the camera. So, despite the testimony of the detective that [the victim] said it was an “old-timey” camera, the fact that he could see his picture immediately on the back of the camera would reasonably lead the detective to know that Appellant was using a Digital SLR camera that has the appearance of an old 35 millimeter camera, but is, in fact, digital with a viewing window on the back of the camera from which a person may view a photograph just taken.

And it is a minor, common-sense inference to conclude that a person taking nude photographs using electronic devices that are meant to be connected to a computer would also store the photographs on a computer. Based upon this reasonable inference drawn from the facts before the magistrate, we find no merit in Taylor’s claim that there was no probable cause to search his computers. See Marlow v. State, 288 Ga. 769, 770 (2) (707 SE2d 95) (2011) (“An officer’s inference that items sought will be at the place to be searched requires no more than ‘a fair presumption’ to be reasonable. [Cit.]”).

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

       In Taylor v. State, 321 Ga. App. 736 (738 SE2d 347) (2013) (“Taylor I”), we dismissed Taylor’s attempt to directly appeal the trial court’s order denying his pre-trial plea in bar based upon an alleged violation of his constitutional right to a speedy trial. In Taylor v. State, 334 Ga. App. XXVIII (Case No. A15A1305) (November 2, 2015) (unpublished), we remanded this case to the trial court for reconsideration based upon errors and deficiencies in its order denying Taylor’s plea in bar.

       Taylor testified that he was allowed leave his solitary jail cell approximately three times a day for about an hour each time and go into a day room and an enclosed recreation yard. During this free time, he was allowed to take showers, shave, talk to other people, buy food from the commissary store, and make telephone calls.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A16A1063.
    YOUNGBLOOD v. ALL AMERICAN QUALITY FOODS, INC.
    (792 SE2d 417)
   ANDREWS, Presiding Judge.

Saundra Youngblood was injured when she slipped and fell in a puddle of water on the floor of a grocery store owned and operated by All American Quality Foods, Inc. d/b/a Food Depot. She sued Food Depot seeking recovery for her injuries alleging that, in violation of the duty imposed under OCGA § 51-3-1, Food Depot negligently failed to exercise ordinary care to keep the store premises safe for her as an invited shopper. Youngblood appeals from the trial court’s grant of summary judgment in favor of Food Depot. For the following reasons, we affirm.

Under OCGA § 51-3-1, where the owner or occupier of land invites the public to enter the premises for a lawful purpose, “he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” “To recover on a theory of premises liability [under OCGA § 51-3-1], a plaintiff must show injury caused by a hazard on .. . [the] premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public.” American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009) (footnote omitted). The fundamental basis for imposing this liability is proof that the premises owner had superior knowledge of the hazard on the premises that caused harm to the invitee. Robinson v. Kroger Co., 268 Ga. 735, 736-738 (1) (493 SE2d 403) (1997). “[I]t is ... only when the [hazard] is known to the owner or occupant and not known to the person injured that a recovery is permitted.” Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980) (citation and punctuation omitted). Accordingly, to recover under OCGA § 51-3-1, a plaintiff has the burden of proving: (1) that, prior to the slip and fall, the owner had actual knowledge of the hazard which caused the slip and fall, or that, under the circumstances, the owner was chargeable with constructive knowledge of the hazard, and (2) that, despite the exercise of ordinary care, the plaintiff lacked knowledge of the hazard prior to the slip and fall. American Multi-Cinema, 285 Ga. at 444 (2); Robinson, 268 Ga. at 736 (1); Alterman Foods, 246 Ga. at 622-623. A plaintiff can prove the owner’s constructive knowledge of the hazard by showing: (1) that an employee of the owner was in the immediate area of the hazard and could have easily seen the hazard and removed it prior to the slip and fall, or (2) that the hazard had existed on the premises for a sufficient length of time that it should have been discovered and removed if the owner had exercised ordinary care to inspect the premises to keep it safe. Id. at 622-623; Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (1) (161 SE2d 366) (1968). Under OCGA § 51-3-1, an owner “is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters,” which includes “inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge. . . Robinson, 268 Ga. at 740 (1). In the absence of facts showing that the premises are unusually dangerous, an owner has no duty to continuously patrol the premises to discover and remove possible hazards. Alterman Foods, 246 Ga. at 622. It follows that an owner normally “is permitted a reasonable time to exercise care in inspecting the premises” (id.) and “a reasonable time after notice of a hazardous condition to exercise care in correcting such condition.” Pickering Corp. v. Goodwin, 243 Ga. App. 831, 832 (534 SE2d 518) (2000).

The facts relevant to Youngblood’s claim under OCGA § 51-3-1 showed the following. It is undisputed that, while shopping on the Food Depot store premises, Youngblood stepped in a puddle of water on the floor in aisle 10 of the store (the beverage aisle) and slipped and fell. Youngblood said she did not see the clear liquid before she slipped and fell. The record shows that the water may have come from a broken water bottle, but there is no evidence of how the bottle was broken, or how the water otherwise got on the floor. While Youngblood was somewhere on the store premises, another store customer, who was checking out at the front of the store, told the check-out cashier about a liquid spill in aisle 10 of the store. The cashier told the check-out bagger, and the bagger then went to get a bucket and mop and a wet floor sign and took those items to aisle 10 to put down the sign and clean up the spill. It is unclear whether Youngblood slipped and fell in the spill before or after the cashier was notified of the spill. In any event, when the bagger got to the spill with the clean-up items, Youngblood had already slipped in the puddle and was lying on the floor. Youngblood confirmed that she slipped and fell before a store employee arrived and found her on the floor, and she could not say how long she had been on the floor before a store employee arrived. There was no evidence that the cashier, after being notified of the spill, delayed telling the bagger about the spill and no evidence that the bagger delayed getting the clean-up items and going to the spill. Other evidence showed that Food Depot had an inspection policy in place that was performed at the store on the day of the slip and fall; that pursuant to this policy, aisle 10 was inspected about 20 minutes before the slip and fall; and the inspection showed no spill or other hazard in the aisle at that time. There was no evidence that any store employee was in the immediate area of the water spill at issue who could have easily seen the hazard and removed it prior to the slip and fall. There was no evidence of any unusually dangerous condition on the store premises requiring more frequent or continuous inspections to discover and remove recurring hazards. In fact, there was no evidence of any other slip and fall at the store other than the present incident.

On these facts, Food Depot moved for summary judgment pursuant to OCGA § 9-11-56.

To prevail on a motion for summary judgment [under OCGA § 9-11-56], the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The moving party may carry this burden either by (1) presenting evidence negating an essential element of the nonmoving party’s claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the nonmoving party to prove the element at trial; or (2) demonstrating an absence of evidence to support an essential element of the nonmoving party’s claim. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. On appeal, we review de novo the trial court’s ruling on a motion for summary judgment, construing all facts and reasonable inferences therefrom in the light most favorable to the nonmovant.

Parks v. Multimedia Technologies, 239 Ga. App. 282, 286-287 (2) (520 SE2d 517) (1999) (citations, punctuation and emphasis omitted); Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Applying these principles, the record supports the trial court’s grant of summary judgment in favor of Food Depot. The parties do not dispute that a factual issue exists as to whether Youngblood (in the exercise of ordinary care for her own safety) should have discovered and avoided the spilled water on the floor. See Robinson, 268 Ga. at 741-743 (1). Rather, the trial court granted Food Depot’s motion for summary judgment by finding: (1) that there was no evidence showing Food Depot had constructive knowledge of the hazardous spill prior to Youngblood’s slip and fall; and (2) that, even construing the record to show that F ood Depot acquired actual knowledge of the spill (when the cashier was told about the spill) prior to Youngblood’s slip and fall, there was no evidence that, after the cashier was told about the spill, Food Depot failed to exercise ordinary care to attempt to remove the spill before Youngblood slipped and fell.

As to the trial court’s finding that no evidence showed constructive knowledge, this was supported: (1) by the absence of any evidence that a Food Depot employee was in the immediate area of the spill who could have easily seen the hazard and removed it prior to the slip and fall (Alterman Foods, 246 Ga. at 622-623), and (2) by evidence that Food Depot performed an inspection procedure prior to the slip and fall that was adequate, as a matter of law, to show the exercise of ordinary care to keep the premises safe under OCGA § 51-3-1. Evidence showed that Food Depot inspected the area of the store where Youngblood slipped and fell about 20 minutes prior to the slip and fall, and that, at that time, no spill or other hazard was present. Where the owner performs an inspection showing that no hazard existed in an area within a brief period prior to an invitee’s injury as a result of a hazard occurring in the same area, this is sufficient to establish, as a matter of law, that the owner exercised ordinary care under OCGA § 51-3-1 to inspect the premises to keep it safe and to show that the owner had no constructive knowledge of the hazard. Matthews v. The Varsity, Inc., 248 Ga. App. 512, 514 (2) (546 SE2d 878) (2001) (inspection five minutes prior to incident found adequate as matter of law).

The trial court also correctly found that, even if Food Depot acquired actual knowledge of the spill just prior to Youngblood’s slip and fall, the present facts show as a matter of law that, after acquiring this knowledge, Food Depot exercised ordinary care to attempt to remove the hazard prior to the slip and fall. The evidence showed that, while Youngblood was on the store premises, Food Depot acquired actual knowledge of the spill at issue when another store customer told a check-out cashier about the spill. Construing the evidence in favor of Youngblood to show that she slipped and fell after the cashier was told about the spill, there is no evidence that Food Depot failed to exercise ordinary care after acquiring actual knowledge. An owner with knowledge of a hazard superior to that of an invitee is not an insurer of the invitee’s safety but has a duty under OCGA § 51-3-1 to exercise ordinary care to protect the invitee from the hazard. Robinson, 268 Ga. at 740 (1). An owner is normally permitted “a reasonable time after notice of a hazardous condition to exercise care in correcting such condition.” Pickering Corp., 243 Ga. App. at 832.

Exactly what constitutes “ordinary care” varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm. The particular standard of care to be applied and whether the owner breached that standard are usually issues to be decided by a jury. However, these issues may be decided by the court in plain and palpable cases where reasonable minds cannot differ as to the conclusion to be reached.

Lau’s Corp., 261 Ga. at 493 (2) (citations and punctuation omitted). The trial court correctly found that this was such a plain and palpable case. After being given notice of the spill, Food Depot exercised ordinary care and acted within a reasonable time when the store cashier dispatched the bagger to clean up the spill, the bagger obtained items to remove the spill, went to the location of the spill, and discovered that Youngblood’s slip and fall had already occurred. There was no evidence showing how long Youngblood had been on the floor before the bagger arrived and no evidence that, after being notified of the spill, the cashier or the bagger delayed their response to remove the spill.

Youngblood points to evidence that Food Depot trained its employees to respond to spills discovered on the floor by having one employee stand over the spill while a co-worker brings a mop and bucket. Youngblood claims that the failure of the Food Depot employees to adhere to this training in the present case created a factual issue as to whether Food Depot exercised ordinary care in responding after receiving notice of the spill. We find no merit to this claim. Even if adherence to this training might have reduced the chance of Young-blood’s slip and fall — a matter of pure speculation — this does not change the fact that, under the circumstances, Food Depot responded within a reasonable time and exercised ordinary care after receiving notice of the spill. To the extent Food Depot policies or training regarding spills established a standard of care in excess of the standard of ordinary care applicable under the circumstances, the trial court correctly refused to hold Food Depot to the heightened standard. Although a company’s private policy may be admissible for the purpose of illustrating negligence (or lack thereof) under circumstances to which the policy would be applicable, the policy does not establish the governing standard of care. Foster v. Southern R. Co., 42 Ga. App. 830, 832 (157 SE 371) (1931); Southern R. Co. v. Allen, 88 Ga. App. 435, 449-450 (12) (77 SE2d 277) (1953); Evershine Products v. Schmitt, 130 Ga. App. 34, 38 (4) (202 SE2d 228) (1973).

Decided October 11, 2016

Shamp Speed Jordan Woodward, Laura W. Speed, Michelle I. King, for appellant.

Meadows & Made, Rod G. Meadows, Stephen P. Morris, for appellee.

The trial court correctly concluded there was no basis to impose liability under OCGA § 51-3-1 and that Food Depot was entitled to summary judgment.

Judgment affirmed.

Doyle, C. J., concurs. Ray, J., concurs in judgment only.


author: DOYLE, Chief Judge.

text:
    A16A1091.
    A16A1126.
    A16A1178.
    RAY v. THE STATE. RANDELL v. THE STATE. BROWN v. THE STATE.
    (792 SE2d 421)
   DOYLE, Chief Judge.

Danterrell Dandre Ray, Alex Donavon Randell, and Shakrystin Brinae Brown were each convicted of multiple offenses based on an armed robbery of a restaurant and its occupants. They were indicted and tried jointly, and we have consolidated their appeals for review.

In Case No. A16A1091, Ray appeals from his convictions on 43 counts (some of which merged for sentencing) including multiple counts of armed robbery, kidnapping, false imprisonment, aggravated assault, possession of a weapon during the commission of a crime, pointing a pistol at another, and theft by taking. Following the denial of his motion for new trial, Ray contends that the trial court erred because (1) the evidence was insufficient to support the guilty verdict; (2) the trial court failed to sever the trial or exclude post-arrest statements made by his co-defendants; and (3) he received ineffective assistance of counsel.

In Case No. A16A1126, Randell appeals from his convictions on 43 counts for the same offenses, some of which also merged at sentencing. Randell challenges the denial of his motion for new trial on the grounds that (1) the evidence was insufficient to support the guilty verdict; (2) he received ineffective assistance of counsel; (3) the trial court failed to sever the trial; and (4) the trial court erroneously allowed the State to ask leading questions.

Finally, in Case No. A16A1178, Brown appeals from her convictions on 43 counts for the same offenses, some of which also merged at sentencing. Brown challenges the denial of her motion for new trial on the grounds that (1) the sentencing scheme for armed robbery is unconstitutional on its face and as applied to her under Apprendi v. New Jersey; (2) the elements of knowledge and intent were not properly charged nor was the evidence sufficient under Rosemond v. United States; and (3) the evidence was insufficient to support the guilty verdict.

For the reasons that follow, we affirm the convictions in each case.

We begin with a general overview of the evidence presented at their joint trial. Construed in favor of the verdicts, the evidence shows that in June 2012, Jonathan Hammonds visited Ahkeem Simmons’s apartment and told Simmons about a robbery that Ham-monds was planning with Ray. Hammonds expected the robbery to yield $70,000. A few days later, Hammonds, Ray, and Randell came by Simmons’s apartment, and Ray asked Simmons to participate in the robbery Ray explained that Brown was a hostess at the restaurant, and she had told him that the security cameras did not work and had given him the location of the manager’s office where a substantial amount of cash would be stored. Ray asked Simmons to drive the getaway car, and Simmons agreed.

As the restaurant’s midnight closing time approached, Simmons drove Ray, Randell, and Hammonds to the restaurant. They waited for Brown to call from within the restaurant to tell them when the customers had left. As Brown completed her closing duties, she ensured that the deadbolt on the front door remained unlocked. At the appropriate time, Ray, Randell, and Hammonds parked at the restaurant and exited their vehicle, all wearing black clothing and masks, with Ray carrying a backpack. Two other friends, Brittany Patterson and Jazmine Washington, had driven to the restaurant and parked outside to act as lookouts and to follow the getaway car to screen it from police.

Ray, Randell, and Hammonds entered the restaurant through the front door, and one pointed a gun at two workers, telling everyone to get down. The bartender secretly tripped the silent alarm as she lay down, and one of the robbers stole $150 in cash and a cell phone from her at gunpoint. Another gunman tied up an employee with zip ties or duct tape and took his wallet at gunpoint. A gunman also stole money and a cell phone from another employee at gunpoint.

A third gunman went to the manager’s office and pointed a gun at the manager. He forced her to open the safe, and he took the cash box located inside, also taking the money in the manager’s purse and in the cash register. The gunman put all the stolen money into a backpack he carried. The gunman then ordered the manager at gunpoint to move from the office to the restaurant floor where the other employees were located. Also in the course of the robbery, the dishwasher was moved at gunpoint from the dishwashing area to the bar area floor, and his wallet was stolen by a robber. Brown, who still was present, was not robbed.

Ray, Randell, and Hammonds then left the restaurant and fled in the waiting cars driven by Simmons and Washington. As they drove to Simmons’s apartment, Randell threw a stolen cell phone out of the window to avoid being tracked by police, and Ray threw a second stolen cell phone into the woods upon arrival. With the help of the phone’s owner, police later tracked the second phone’s location to the area of Simmons’s apartment.

Everyone from the two cars gathered inside Simmons’s apartment to count the money from the robbery They were disappointed to find that instead of the $70,000 they expected, they had only stolen about $1,900. They divided the money among Simmons, Ray, Randell, Hammonds, Patterson, and Washington.

After investigating the crime scene and interviewing witnesses, police learned that Brown had left the front door unlocked and subpoenaed her cell phone records. Those records eventually led to an interview with Patterson, who had been in one of the vehicles during the robbery and who identified each of the perpetrators involved. Washington also confirmed the same information to police. After searching the vehicle driven by Simmons, police found a mask and bandana.

In a 52-count indictment, Brown, Randell, Simmons, Patterson, Washington, Hammonds, and Ray were accused of committing multiple offenses against multiple victims during their roles in the robbery. Ray unsuccessfully moved to sever his trial, and after declining plea offers, the defendants were tried jointly before a jury The trial court directed not guilty verdicts as to seven counts, and the jury returned guilty verdicts on the remaining counts. The trial court denied each defendant’s motion for new trial, giving rise to these appeals.

Case No. A16A1091

1. Ray contends that the evidence was insufficient to support the guilty verdict as to certain counts.

(a) Kidnapping. Ray first challenges two kidnapping counts. Citing Garza v. State, Ray argues that the evidence failed to sufficiently demonstrate the asportation element of kidnapping as to the manager and the dishwasher. We disagree.

Decided in 2008, Garza addressed the elements of kidnapping:

A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will. Under [then] current Georgia jurisprudence, the element of “abducting or stealing away” the victim, known in legal parlance as “asportation,” [could] be established by proof of movement of the victim, however slight.

Garza abandoned the “slightness” threshold and instead adopted a four-part test to distinguish a kidnapping from an incidental part of another offense such as a robbery.

Nevertheless, “Garza has been superseded by statute for offenses occurring after July 1, 2009,” such as the ones here, which occurred in 2012. The current and applicable statute reads as follows, in relevant part:

(a) A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.
(b) (1) For the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.
(2) Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension. ...

The dishwasher was moved at gunpoint from the dishwashing area to the front of the restaurant and ordered to lie down on the floor. Similarly, the manager was moved at gunpoint from the manager’s office to the front of the restaurant and ordered to lie down on the floor. These movements were not merely incidental to the armed robbery because they made the completion of the armed robbery substantially easier by consolidating all of the restaurant occupants into one area and enhancing the perpetrators’ control over the victims, thereby lessening the risk of detection and apprehension due to a victim’s flight or attempt to contact police. Under these circumstances, and according to the applicable statutory definition of kidnapping, the evidence sufficed to support the kidnapping offenses as to the manager and the dishwasher.

(b) False Imprisonment of C. G. Ray also contends that the State failed to prove that he falsely imprisoned a certain victim, C. G., arguing that there was no evidence that the victim was confined or detained against his will. Under OCGA § 16-5-41 (a) “[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” Ray’s argument ignores the testimony of two other victims who stated that the gunmen held C. G. at gunpoint, and he was not free to leave during the robbery. When an appellate court reviews the sufficiency of the evidence,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Based on the testimony from the other victims, Ray’s argument fails.

(c) Armed robbery of C. G. Ray also challenges the sufficiency of the evidence as to armed robbery of C. G. Under OCGA § 16-8-41 (a), “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon . . . Here, there was testimony from another victim that one of the three gunmen pointed a gun at C. G. and took money from him. This was corroborated by a second victim who saw a gunman point his gun at C. G. This evidence sufficed to show that C. G. was a victim of armed robbery.

With respect to the identity of the perpetrator of the robbery against C. G., we note that

a participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. The question of whether [a defendant] was a party to the armed robbery [is a question] for the jury to resolve.

The evidence here showed that the three robbers wore masks to hide their identities. But there was also evidence that Ray was one of the three masked men who entered the restaurant to carry out the robbery and that Ray carried a pistol. Also, Ray was one of the initial planners of the robbery, and he recruited Simmons to drive. Ray threw a stolen phone into the woods to conceal the crime and avoid detection by police. Viewed in the light most favorable to the verdict, as is proper on appeal, this evidence was sufficient to support a guilty verdict against Ray for the armed robbery of C. G.

2. Next, Ray contends that the trial court erred by failing to sever the trial or exclude post-arrest statements made by his co-defendants. Ray filed a motion to sever his trial, but the record does not reflect a particular ruling on his motion, and the trial was not severed. Pretermitting whether Ray waived his request for severance, we discern no reversible error.

Under OCGA § 17-8-4 (a), when multiple defendants are jointly “indicted for . . . [felonies] less than capital, . . . such defendants may be tried jointly or separately in the discretion of the trial court.”

It is incumbent upon the defendant who seeks a severance to show clearly that the defendant will be prejudiced by a joint trial, and in the absence of such a showing, the trial court’s denial of a severance motion will not be disturbed. Factors to be considered by the trial court are: whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses. The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.

In the order denying Ray’s motion for new trial, the trial court found that the defendants did not have antagonistic defenses because they all took the position that they had no involvement in the robbery None of the defendants on trial testified or presented evidence, so there was no defense theory presented by a co-defendant that was antagonistic to Ray’s defense. Other than making the general allegation that Ray’s co-defendants’ defenses were antagonistic, he points to no specific evidence inculpating him and exculpating another co-defendant. The same is true of Ray’s general allegation that the evidence overwhelmed the jury Rather, the evidence showed that the defendants all played a role in a single robbery, not separate, unrelated offenses that might muddy the evidence as to a single defendant’s offenses.

Ray also relies on Byrd v. Wainwright to argue that he was deprived of the benefit of his co-defendants’ testimony, who were entitled not to incriminate themselves in their own trials. But Ray gives no specific showing or explanation of what that testimony would have been. Further, there was strong evidence of Ray’s participation in the robbery, and absent some other showing, Ray failed to demonstrate prejudice showing an abuse of the trial court’s discretion in trying him jointly.

Ray finally relies on Bruton v. United States to argue that his trial should not have included hearsay statements by his co- defendants that incriminated him and that he was denied his Sixth Amendment right to cross-examine those witnesses (who did not actually testify). “As an initial matter, the statements in question were . . . properly admitted under the co-conspirator exception to the hearsay rule.” There was independent evidence — testimony by Simmons that was subject to Ray’s cross-examination — of Ray’s planning of and participation in the robbery with his co-defendants.

As to the Confrontation Clause issue, a defendant’s Sixth Amendment right to be confronted by the witnesses against him is violated under Bruton when co-defendants are tried jointly and the testimonial statement of a co-defendant who does not testify at trial is used to implicate the other co-defendant in the crime. Bruton thus applies only to out-of-court statements by non-testifying co-defendants that are “testimonial” in nature. A statement is testimonial if its “primary purpose was to establish evidence that could be used in a future prosecution.” Here, [none] of the statements in question were testimonial in nature[, because] . . . statements by a co[-]conspirator made during and in furtherance of the conspiracy are not considered “testimonial” and therefore do not require any constitutional scrutiny under the Confrontation Clause.

Accordingly, these statements were not a basis for severance of Ray’s trial.

3. Last, Ray contends that he received ineffective assistance of counsel. We disagree.

To establish that his trial counsel was constitutionally ineffective, [Ray] was required to prove both deficient performance by counsel and resulting prejudice. To prove deficient performance, [Ray] had to demonstrate that counsel performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Because judicial scrutiny of counsel’s performance must be highly deferential, the law recognizes a “strong presumption” that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. To carry this burden, [Ray] must show that no reasonable lawyer would have done what his counsel did, or failed to do what his counsel did not do. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.
Even if a defendant can prove that his counsel’s performance was deficient, he must also prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, the defendant must demonstrate a “reasonable probability” of a different result, which, the United States Supreme Court has explained, is “a probability sufficient to undermine confidence in the outcome.” In all, the burden of proving a denial of effective assistance of counsel is a heavy one.

(a) Failure to investigate case. Ray generally asserts that his trial counsel performed deficiently by failing to adequately investigate the case and interview witnesses. But he does not identify which witnesses his trial counsel should have interviewed, what the interviews might have revealed that trial counsel did not already know, or what evidence should have been investigated further. At the post-trial hearing on Ray’s motion for new trial, his trial counsel testified that he was unable to interview Ray’s co-defendants (who did not testify) because they were represented by counsel. Ray has the burden of demonstrating how he was harmed by his counsel’s deficient performance, and he has failed to do so.

(b) Failure to cross-examine witnesses. Ray also generally points to his trial counsel’s failure to adequately cross-examine witnesses, but again, he does not identify which witnesses should have been cross-examined or what such an examination would have produced. At the post-trial hearing, Ray’s trial counsel testified that at the joint trial, his “turn” was third in line, so the State’s witnesses had already been cross-examined by counsel for Brown (who was thorough) and Hammonds (who filled in gaps with follow-up questions). “[T]he scope of cross-examination is grounded in trial tactics and strategy[ ] and will rarely constitute ineffective assistance of counsel.” Based on the record before us, Ray has failed to meet his burden of showing deficient performance on this ground.

(c) Failure to sever. Ray argues that his trial counsel was ineffective by abandoning his motion to sever. In light of our ruling in Division 2, this argument fails because “the failure to make a meritless motion or objection does not provide a basis upon which to find ineffective assistance of counsel.”

Case No. A16A1126

4. Randell contends that the evidence was insufficient to support the guilty verdict, conclusorily arguing that “the evidence presented was contrary to a conviction . . . and [Randell] should have been acquitted on all counts.” This is belied by testimony that Randell participated in the planning of the robbery, rode in the car to the robbery, entered the restaurant with the other robbers, fled the scene with the other robbers, threw a stolen cell phone out of the car window to avoid tracing, and divided the spoils with the other robbers. Contrary to Randell’s argument,

[o]n criminal appeal, appellant is no longer presumed innocent^] and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a witness’s credibility is the responsibility of the factfinder, not this Court.

Viewed properly, the evidence as a whole was sufficient to support the jury’s guilty verdict as to Randell.

Randell also makes the same arguments as Ray as to certain offenses, and for the reasons stated in Division 1, those arguments fail.

5. Randell next argues that he received ineffective assistance of counsel. His burden on appeal is the same as stated in Division 3.

(a) Failure to object to leading questions. Randell argues that his trial counsel performed deficiently by failing to object to multiple leading questions by the State. At the motion for new trial hearing, Randell’s trial counsel testified that it is his practice to object to some leading questions but not others, as he did in this case, depending on the context and whether it helps his case: “It’s a judgment call.” “As a general rule, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel. An attorney’s decision to forego objecting to hearsay or to leading questions used to establish routine points constitutes reasonable trial strategy.” Based on the record before us, Randell has failed to meet his burden under Strickland on this ground.

(b) Failure to request discovery or interview witnesses. Randell challenges his trial counsel’s decision not to opt into discovery and his failure to interview any witnesses. This is belied by the transcript of the post-trial hearing, which contains testimony by Randell’s counsel explaining that as part of his pre-trial investigation, he was provided with the State’s entire file and information on any deals they made with the State. Further, Randell’s trial counsel testified that he did interview multiple police witnesses during his investigation and that he spoke to the attorneys of the other defendants. Based on this record, Randell has not demonstrated deficient performance.

(c) Failure to sever. Like Ray, Randell asserts that his counsel was ineffective by failing to move to sever his trial from that of his co-defendants. Nevertheless, his trial counsel explained that this decision was a strategic one hinging on a defense strategy — that cell phone records would exonerate his client — that ultimately failed to come to fruition. Further, as we explained in Division 2, trying the co-defendants jointly, despite a pending motion to sever filed by Ray, was within the trial court’s discretion, so Randell cannot demonstrate that he was harmed on this basis.

(d) Failure to request jury instruction. Last, Randell argues that his trial counsel performed deficiently by failing to request the following jury charge: “Though you may consider all of the evidence as a whole, conviction of one defendant does not necessarily require conviction of another (or all). You, the jury, must determine the guilt or innocence of each defendant separately” The transcript reveals that the trial court gave this instruction nearly verbatim. Accordingly, this argument fails.

6. Randell also challenges the trial court’s failure to sever the trial. For the reasons stated in Division 2, this enumeration is without merit.

7. Finally, Randell argues that the trial court erroneously allowed the State to ask leading questions.

Leading questions generally are allowed only on cross-examination. However, the trial court has the discretion to allow leading questions on direct examination, where, for example, the witness is nervous, or ignorant, or hostile. It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.

Here, certain leading questions were not challenged by counsel, so the trial “court’s discretion was not even invoked,” and as ruled in Division 5 (a), those questions do not support an ineffective assistance of counsel claim. As to other questions that were challenged, the trial court sustained some of the objections made by defense counsel, and Randell points to no specific objection that was erroneously overruled. We note that two of the three witnesses at issue were testifying with an interpreter, and “allowing leading questions where there is a language barrier” is not an abuse of discretion. Based on Randell’s lack of specific objections at trial, and his trial counsel’s responses with respect to his ineffective assistance of counsel claim, we discern no reversible error.

Case No. A16A1178

8. Brown, the restaurant employee who was also convicted of participating in the robbery, urges that her sentence was unconstitutional as applied and on its face. She was found guilty of 43 counts based on the robbery, including multiple counts of armed robbery, kidnapping, false imprisonment, possession of a firearm during the commission of a felony, aggravated assault, pointing a pistol at another, and theft by taking. She was sentenced to two consecutive life sentences with the possibility of parole, with the remainder of her confinement concurrent to the life sentences.

(a) Apprendi challenge. Specifically, Brown challenges the two life sentences she received for armed robbery under OCGA § 16-8-41 (b), which provides that “[a] person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.” She asserts that this scheme is unconstitutional under the precedent established by Apprendi, which stands for the proposition that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Because the sentence at issue was within the statutory maximum and did not extend Brown’s punishment beyond the prescribed range supported by the jury’s verdict, “Apprendi simply does not apply to this sentencing scheme.”

(b) Vagueness challenge. Brown also argues that her sentence was improper based on the vagueness of OCGA § 16-8-41 (b) as to when a life sentence might apply versus a ten- to twenty-year sentence. But this Court has explained that the sentencing structure is not unconstitutionally vague:

Although the statute allows the sentencing judge broad discretion, it does not provide two different maximum sentences and is not unconstitutionally vague. The courts of this state have consistently held that the maximum penalty upon conviction for armed robbery is life imprisonment. As an alternative to imposing this maximum sentence, under OCGA § 16-8-41 (b), a court also has the discretion to impose a determinate sentence of any period of time between five and twenty years.

Therefore, Brown’s arguments based on the vagueness of OCGA § 16-8-41 (b) are without merit.

(c) Eighth Amendment challenge. Brown argues that her sentence violated the United States and Georgia Constitutions’ prohibitions against cruel and unusual punishment. As stated above, Brown’s sentence was within the range prescribed by the statute.

[A] presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment. Such presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.
[I]n order to determine if a sentence is grossly disproportionate, a court must first examine the “gravity of the offense compared to the harshness of the penalty” and determine whether a threshold inference of gross dispropor-tionality is raised. In making this determination, courts must bear in mind the primacy of the legislature in setting punishment and seek to determine whether the sentence furthers a “legitimate penological goal” considering the offense and the offender in question. If a sentence does not further a legitimate penological goal, it does not “reflect a rational legislative judgment, entitled to deference,” and a threshold showing of disproportionality has been made. If this threshold analysis reveals an inference of gross disproportionality, a court must proceed to the second step and determine whether the initial judgment of disproportionality is confirmed by a comparison of the defendant’s sentence to sentences imposed for other crimes within the jurisdiction and for the same crime in other jurisdictions.

Here, the trial court explained at the sentencing hearing that the crime “would not have happened without” Brown’s participation. Brown worked at the restaurant and had noticed the potential for a large amount of cash to be handled at the end of the day and that the security cameras did not work. More importantly, Brown left the front door of the restaurant unlocked after hours, contrary to the restaurant’s policy of locking the door during closing. The trial court also noted the effect on each of the multiple victims in the restaurant who had guns “to their heads and backs” not knowing “whether they would live or die,” as well as the ripple effect on the community such that “you can’t go into a restaurant without wondering . . . what’s going to happen.” The court also considered the punitive effect of a harsh sentence, as well as ensuring that “the rest of us will be safe from you.” Last, the court noted that Brown’s conduct was “perhaps even worse” than her co-defendants because the victims were her co-workers and friends, and Brown was the one who deliberately allowed three masked gunmen to enter and rob the victims at gunpoint.

In light of all of these factors, as well as the statutory sentencing scheme and Brown’s eventual eligibility for parole, Brown has not overcome the presumption that her sentence did not violate the Eighth Amendment’s guarantee against cruel and unusual punishment.

Decided October 11, 2016

The Leslie Group, Deborah L. Leslie, for appellant (case no. A16A1091).

Darrell B. Reynolds, Sr., for appellant (case no. A16A1126).

Bruce S. Harvey, Jennifer S. Hanson, for appellant (case no. A16A1178).

9. Brown also argues that the State failed to prove her accomplice liability under Rosemond for the offenses involving firearms. That case

held that, under the federal aiding and abetting statute, [] a person may be convicted of aiding and abetting the federal crime of using or carrying a firearm in connection with a drug trafficking crime,[] only if [s]he had advance knowledge that a co-defendant would use or carry a firearm.

Pretermitting whether the evidence showed Brown’s knowledge that her co-defendants would be armed, “[t]hat case arose under federal law [addressing a different, criminal statute] and thus does not control here.” Thus, “although [Brown] argues that pursuant to Rosemond ... a defendant must know in advance that [her] companion is armed because the defendant must intend to commit each element of the crime rather than a single component of it, our Supreme Court already has distinguished and declined to follow Rosemond.” Accordingly, this enumeration is without merit.

10. Finally, Brown argues that the evidence was insufficient to support the verdict as to the kidnapping, false imprisonment, and armed robbery counts addressed in Division 1. For the reasons discussed in that division, this enumeration fails.

Judgments affirmed.

Andrews, P. J., and Ray, J., concur.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, John E. Fowler, Travis J. Meyer, Assistant District Attorneys, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-40 (a).

       OCGA § 16-5-41 (a).

       OCGA § 16-5-21 (b) (1).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-11-102.

       OCGA § 16-8-2.

       530 U. S. 466, 490 (IV) (120 SCt 2348, 147 LE2d 435) (2000) (holding that any fact, other than that of a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt).

       _U. S._(134 SCt 1240, 188 LE2d 248) (2014).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       284 Ga. 696 (670 SE2d 73) (2008), superseded by statute as stated in Gonzalez v. Hart, 297 Ga. 670, 672 (777 SE2d 456) (2015). See also OCGA § 16-5-40 (b) (2) (2009).

       (Citation and punctuation omitted.) Garza, 284 Ga. at 697 (1), citing former OCGA § 16-5-40 (a) (2008).

       See id. at 702 (1) (Courts must assess “four factors in determining whether the movement at issue constitutes asportation: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.”).

        Gonzalez, 297 Ga. at 672, n. 3. See Ga. L. 2009, p. 331.

       (Emphasis supplied.) OCGA § 16-5-40.

       See Ward v. State, 324 Ga. App. 230, 232-233 (1) (749 SE2d 812) (2013) (movement from one room of a residence to another during a rape was sufficient to constitute asportation).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       See Odle v. State, 331 Ga.App. 146, 149-150(1) (770 SE2d 256) (2015). See also OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

       (Citations and punctuation omitted.) Hines v. State, 320 Ga.App. 854, 857 (1) (740 SE2d 786) (2013).

       See id. at 858 (1) (a); Cantrell v. State, 230 Ga.App. 693, 695 (1) (498 SE2d 90) (1998).

       (Citation and punctuation omitted.) Daniel v. State, 285 Ga. 406, 407-408 (3) (677 SE2d 120) (2009).

       See id. at 408 (3) (a).

       428 F2d 1017 (5th Cir. 1970).

       See id. at 1020 (defendant must make a clear showing as to what the co-defendant’s testimony would have been).

        See Avellaneda v. State, 261 Ga. App. 83, 89 (581 SE2d 701) (2003).

       391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968).

        Favors v. State, 296 Ga. 842, 844-845 (2) (770 SE2d 855) (2015); OCGA § 24-8-801 (d) (2) (E) (admissions shall not be excluded by the hearsay rule, and admissions include “statements] by a co[-]conspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy.”).

       (Citations and punctuation omitted.) Favors, 296 Ga. at 845 (2).

       (Citations and punctuation omitted.) Smith v. State, 298 Ga. 406, 412 (3) (a) (782 SE2d 269) (2016), quoting Strickland v. Washington, 466 U. S. 668, 687 (III) (A), 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984).

       See Dixon v. State, 267 Ga. 136, 138 (2) (475 SE2d 633) (1996) (unsuccessful attempt to interview witness was not deficient performance).

       (Punctuation omitted.) Cooper v. State, 281 Ga. 760, 762 (4) (a) (642 SE2d 817) (2007).

       See id.

        Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014).

       (Citation omitted.) Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014).

       (Citation and punctuation omitted.) Williams v. State, 282 Ga. 561, 564 (5) (a) (651 SE2d 674) (2007).

       See Thompson v. State, 203 Ga. App. 339 (2) (416 SE2d 755) (1992) (relying on informal process to obtain discovery materials from State was not ineffective assistance of counsel).

       (Citation omitted.) Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993).

       Id. at 265-266 (10).

        Dumas v. State, 283 Ga. App. 279, 282 (3) (641 SE2d 271) (2007).

       For the reasons discussed below, we pretermit whether Brown made a timely objection to her sentence or whether her trial counsel was ineffective for not doing so.

       (Emphasis supplied.) Apprendi, 530 U. S. at 474 (II), 490 (IV) (specifically addressing “whether the 12-year sentence imposed... was permissible, given that it was above the 10-year maximum for the offense charged in that count”).

        Babbage v. State, 296 Ga. 364, 368 (2) (b) (768 SE2d 461) (2015). See also Burke v. State, 274 Ga. App. 402, 404 (1) (618 SE2d 36) (2005).

       (Punctuation andfootnote omitted.) Hudson v. State, 334 Ga. App. 166, 168 (2) (778 SE2d 406) (2015), quoting Corey v. State, 216 Ga. App. 180, 180-181 (454 SE2d 154) (1995).

        McKenzie v. State, 302 Ga. App. 538, 541 (2) (691 SE2d 352) (2010).

       (Punctuation and footnotes omitted.) Humphrey v. Wilson, 282 Ga. 520, 525 (3) (a) (652 SE2d 501) (2007).

       See Windhom v. State, 326 Ga. App. 212, 216 (5) (756 SE2d 296) (2014).

       134 SCt 1240.

       See 18 USC § 2.

       See 18 USC § 924 (c).

        Hicks v. State, 295 Ga. 268, 273 (1) n. 3 (759 SE2d 509) (2014).

       Id.

        Boccia v. State, 335 Ga. App. 687, 698-699 (5) (782 SE2d 792) (2016), citing Williams v. State, 276 Ga. 384, 386 (4) (578 SE2d 858) (2003) (prosecution is not required to prove defendant knew that co-defendant intended to use a gun; the only proof required was that defendant was part of a conspiracy to rob and co-defendant’s “use of the weapon was naturally and necessarily done in furtherance of that crime”).