text:
    A14A1252.
    WALKER v. THE STATE.
    (765 SE2d 599)
   DOYLE, Presiding Judge.

Following a jury trial, Furman Walker appeals from his conviction of armed robbery and possession of a firearm during the commission of a felony. He contends that the trial court erred because (1) the evidence was insufficient to support the guilty verdict, (2) the indictment failed to allege an essential element of the crime and was therefore void, and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [ ] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

So viewed, the evidence shows that during an overnight shift at a Sonic fast-food restaurant, a man in a ski mask appeared at the door and entered the restaurant, demanding money and threatening to shoot someone. At the robber’s insistence, an employee opened a cash register and put money into a plastic Sonic salad bag. The robber then ordered an employee to open the safe, but the employee explained that he did not know how, so the robber fled in a dark colored sedan with a vinyl top that was parked next door to the restaurant.

Employees called 911 and described the robber and the vehicle to the police operator. Apolice officer who was responding to another call happened to be a block away from the Sonic. The officer immediately spotted a dark sedan driving at an excessive rate of speed with no lights, and the officer requested a description of the robber’s vehicle. The vehicle matched the description given to him by dispatch, so the officer pursued it at a high rate of speed for some time. Ultimately, the officer lost sight of the vehicle, but soon spotted it again parked at a nearby residence. As the officer got out of his vehicle to approach the residence, Walker appeared at the door of the residence, sweating and breathing heavily. As the officer walked past the sedan, he saw in the front floorboard a black ski mask. The officer explained that he was investigating an armed robbery, and Walker denied any knowledge of the robbery. In light of the ski mask, the matching vehicle, and Walker’s sudden appearance at the door, the officer, along with other arriving backup, briefly detained Walker for further investigation. A Sonic salad bag was also found in Walker’s vehicle.

Shortly thereafter, witnesses from the Sonic were asked to identify Walker, and although one later said that he was 90 percent sure Walker was the robber, none of the witnesses could positively identify him at that time because the robber was wearing a mask.

Police later asked Walker to make a recording of his voice, and based on this recording, two Sonic witnesses were able to positively identify Walker’s voice as that of the robber. The witnesses recognized the voice as “just like” and “exactly’ like the robber’s. Both witnesses described a peculiarity about the robber’s speech — that he spoke with a thick-tongued lisp — which was also present in the recording. Based on the police investigation, Walker was charged with armed robbery and possession of a firearm during the commission of a felony, and following his conviction by a jury, he appeals.

1. Walker now contends that the evidence was insufficient to support the verdict, citing inconsistencies and the largely circumstantial nature of the State’s case. But conflicts in the evidence are for the jury to resolve, and this Court is not authorized to second-guess the jury’s credibility determinations.

Walker nevertheless urges that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypotheses save that of the guilt of the accused.” But this rule applies where the conviction is based solely on circumstantial evidence, and here, there was direct evidence based on the witness’s recognition of Walker’s voice that Walker was the robber.

It is well settled that

[w]hether the evidence excludes every other reasonable hypotheses is ordinarily a question for the jury, whose finding shall not be disturbed unless the verdict of guilt is unsupportable as a matter of law. Further, circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. The question of whether there was a reasonable hypothesis favorable to the accused is a question for the jury. If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law.

Based on the witnesses’ positive identification of Walker’s distinctive speech; the ski mask and salad bag found in Walker’s vehicle; and the sudden, labored, and sweaty appearance of Walker immediately after the robbery and high speed chase, the jury was authorized to find Walker guilty of the offenses.

2. Walker also contends that the trial court erred by convicting him on a void indictment because, he argues, it lacked an essential element of the offense of armed robbery. The indictment alleged as follows:

The Grand Jurors . . . charge and accuse Furman Walker with the offense of Armed Robbery for that the said accused in Lowndes County, Georgia, on or about the 25th day of September 2010, then and there with intent to commit a theft, did unlawfully take lawful U.S. Currency, from the immediate presence of [the victim], by the use of an offensive weapon, to-wit: a pistol, contrary to the laws of said State, the good order, peace and dignity thereof.

OCGA § 16-8-41 (a) defines the offense as follows: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”

Walker correctly points out that the fact that the currency was the property of another was not alleged in the indictment under which he was convicted. But he did not raise this issue in the trial court by a timely general demurrer, or after trial by a timely motion in arrest of judgment. “The failure to file a general or special demurrer, or a timely motion in arrest of judgment, waives any claim that could have been raised in a general or special demurrer.” Accordingly, this enumeration presents nothing for review.

3. Walker next contends that he received ineffective assistance of counsel on several grounds: (a) failure to challenge the defective indictment, (b) failure to adequately prepare for trial, (c) failure to object to hearsay and bolstering testimony, (d) failure to object to opinion testimony on the ultimate issue, and (e) failure to obtain transcripts of the 911 call and radio calls or an expert in the field of voice identification.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Failure to challenge the indictment. As noted in Division 2, the indictment did not allege that the currency Walker stole was the property of another, and Walker’s trial counsel failed to challenge this omission. But even if we assume that the indictment was fatally flawed and therefore susceptible to a general demurrer, “the grant of a general demurrer due to a finding that the indictment was void ab initio . . . does not automatically bar the reindictment of the defendant.”

Moreover, when trial has been had before the appellate court reviews the merits of the motion to quash, where no prejudice to defendant has occurred though the indictment... is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. Convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment. . . . Thus a defendant who was not misled to his prejudice by any imperfection in the indictment. . . cannot obtain reversal of his conviction on that ground.

Here, the indictment set out the date of the offense and the facts necessary to inform Walker of the charged offense, allow him to prepare his defense, and protect him from double jeopardy for the charged offense. The trial evidence showed no dispute as to the robber’s lack of authority to take the money from the Sonic restaurant at gunpoint, so Walker was not misled by the wording of the indictment about the nature of the property he stole. Based on the record before us, this argument presents no ground for reversal.

(b) Failure to adequately prepare for trial. Walker argues that his trial counsel did not adequately prepare for trial because he failed to subpoena and secure testimony from two witnesses (Vincent Flanders and Micah Edwards) who gave initial statements to police describing the robber as having light skin and the getaway vehicle as a tan pickup truck (instead of a dark sedan).

With respect to Edwards, Walker’s trial counsel testified that he attempted to reach him several times, but was never successful. Trial counsel also pointed out that despite a subpoena issued by the State, Edwards was never successfully contacted by either him or the State, nor did he testify at the hearing on trial counsel’s effectiveness. Even assuming that trial counsel performed deficiently, absent further evidence that Edwards was available to testify and what his testimony would have been, Walker cannot make the required showing of harm resulting from his trial counsel’s efforts to obtain testimony from Edwards.

With respect to Flanders, he was located and did testify at the hearing on Walker’s ineffective assistance claim. His testimony was equivocal about the type of vehicle used by the robber, and Flanders concluded that he was “not sure what type of vehicle it was.” Such testimony does not give rise to a reasonable probability that the trial result would have been different if this testimony had been elicited at trial.

(c) Failure to object on hearsay and bolstering grounds. Walker points to his trial counsel’s failure to object to certain testimony given by Detective Stephen Thompson about what he saw on a Sonic security video that was played for the jury. Thompson spoke to what he saw on the videotape to explain how he narrowed his investigation to Walker. Despite the cumulative nature of the testimony, Walker asserts that his trial counsel should have objected on hearsay and bolstering grounds. While the testimony may have served the State’s case, Walker does not demonstrate how the testimony amounted to improper bolstering by commenting on the veracity of another witness’s testimony. Therefore, trial counsel’s failure to object did not amount to ineffective assistance.

(d) Failure to object to comment on ultimate issue. During trial, the following colloquy took place during testimony by a detective:

WALKER’S COUNSEL: Did you at any time tell Mr. Walker, ‘You may not have done this, Mr. Walker, but you know who did?”
DETECTIVE: That’s a possible statement I might have said.
COUNSEL: So, you said to him, “you may not have done it, but we think you know who did do it.”?
DETECTIVE: That’s a possible statement I would have made to him.
COUNSEL: Nothing further.
STATE [on redirect]: . . . [D]o the statements that [trial counsel] asked you about,... is that a typical thing you do to get people to talk?
DETECTIVE: That would be a tactic used during the course of an interview to get somebody to speak to me, yes.
STATE: Do you think anybody else did it based on what you have?
DETECTIVE: Absolutely not.

At the motion for new trial hearing, Walker’s trial counsel testified that he did not specifically recall the testimony, but he would not have objected because “he did not want to draw the jurors’ attention to it anymore than that[, but] I probably should have objected.” To the extent that this was a tactical decision not to object, it does not require reversal because “decision of whether to interpose certain objections is a matter of trial strategy and tactics.” And “when one is considering matters of trial strategy and tactics, the effectiveness of trial counsel must not be judged by hindsight or the ultimate result of the trial.”

To the extent that trial counsel’s poor memory or equivocation takes this out of the realm of trial strategy, we note that the comment was an isolated statement on redirect to explain the interview tactic challenged by Walker’s trial counsel during cross-examination. The Sonic witnesses consistently identified Walker as the robber, and in light of the other evidence of Walker’s guilt, we conclude that the comment was not such that it gave rise to a reasonable probability that the trial outcome would have been different had an objection been interposed.

(e) Failure to obtain transcripts or a voice identification expert. Finally, Walker asserts that his trial counsel should have obtained transcripts from the 911 call and radio dispatches, as well as a voice identification expert. But Walker did not call such an expert to proffer how such an expert may have helped, nor did he explain how the 911 transcripts would have exculpated him. Absent a proffer of evidence or testimony from any uncalled witness or a legally recognized substitute, appellant cannot meet his burden under Strickland to demonstrate the prejudice element of his ineffective assistance claim.

Decided October 28, 2014.

Jon W. McClure, for appellant.

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

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-11-106 (b) (1).

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

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       One witness did recognize Walker’s gray goatee and distinctive rings as matching those of the robber.

       See id.

       See Hazelwood v. State, 265 Ga. App. 709, 711 (595 SE2d 564) (2004).

       Former OCGA § 24-4-6. This evidentiary rule is now found at OCGA § 24-14-6.

       See Zapien-Chavez v. State, 285 Ga. App. 319, 320 (1) (646 SE2d 311) (2007), citing Lane v. State, 255 Ga. App. 274, 276 (564 SE2d 857) (2002).

       (Citations and punctuation omitted.) Reeves v. State, 294 Ga. 673, 674(1) (755 SE2d 695) (2014).

       (Emphasis supplied.)

       See State v. Wilson, 318 Ga. App. 88, 91 (1), n. 10 (732 SE2d 330) (2012) (“Because a person cannot be lawfully convicted on an invalid indictment, a general demurrer may be raised orally or in writing at any time before judgment is entered on his or her conviction.”); Coleman v. State, 318 Ga. App. 478, 479 (1) (735 SE2d 788) (2012) (“Because a general demurrer attacks the legality of an indictment, it may be raised any time during the trial and may even be raised after the verdict by a motion in arrest of judgment; however, a motion in arrest of judgment must be made during the term when the judgment was obtained.”).

        Coleman, 318 Ga. App. at 479 (1).

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

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       See, e.g., Cooks v. State, 325 Ga. App. 426, 428 (1) (750 SE2d 765) (2013) (indictment was void because the defendant “could admit all the allegations of the indictment and still not be guilty of the robbery charged since there would be no admission that he took the property of another”) (physical precedent only).

        Wilson, 318 Ga. App. at 97 (3), citing Armstrong v. State, 281 Ga. App. 297, 298 (635 SE2d 880) (2006).

       (Punctuation omitted; emphasis supplied.) Coleman, 318 Ga. App. at 482 (2).

       See Robinson v. State, 278 Ga. 31, 35 (3) (b) (597 SE2d 386) (2004) (“In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a petitioner is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.”) (punctuation omitted).

       See, e.g., Bly v. State, 283 Ga. 453, 459(3) (660 SE2d 713) (2008) (“a witness... can never bolster the credibility of another witness as to whether the witness is telling the truth”).

       See Williams v. State, 292 Ga. 844, 848 (3) (a) (742 SE2d 445) (2013) (failure to object to cumulative hearsay is not grounds for reversal).

       (Punctuation omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008), citing Boyt v. State, 286 Ga. App. 460, 463 (2) (b) (649 SE2d 589) (2007) (failure to object to investigator’s opinion testimony allegedly concerning ultimate issues of fact deemed reasonable trial strategy). See also Glass v. State, 255 Ga. App. 390, 403 (10) (g) (565 SE2d 500) (2002) (reasonable trial strategy to avoid drawing attention to comment on ultimate issue).

        Williams v. State, 280 Ga. 539, 543 (2) (630 SE2d 410) (2006).

        See Birkbeck v. State, 292 Ga. App. 424, 429 (2) (b) (665 SE2d 354) (2008) (failure to object to a single comment on the ultimate issue did not result in sufficient prejudice for reversal in light of isolated nature of comment, jury’s ability to evaluate the witnesses, and the other evidence of guilt), disapproved on other grounds by State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010); Usher v. State, 258 Ga. App. 459, 463 (1) (f) (574 SE2d 580) (2002) (no reasonable probability of different trial outcome because witness consistently identified defendant as perpetrator).

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


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A14A0751.
    OLIVER v. THE STATE.
    (765 SE2d 606)
   Dillard, Judge.

Following trial, a jury convicted Darius Oliver of one count each of voluntary manslaughter, aggravated assault, criminal trespass, and possession of a firearm during the commission of a felony. Oliver appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in excluding evidence of the victim’s propensity for violence. For the reasons set forth infra, we affirm Oliver’s convictions.

Viewed in the light most favorable to the jury’s verdict, the record shows that in the early morning hours of April 29, 2012, Chasmyn Donald was out with friends when she received a call from her boyfriend, Oliver, who asked her to pick him up from a nightclub that he and his friends had just left. But shortly after Donald and her friends picked up Oliver and his friends, she and Oliver began arguing. This argument escalated into a fight, at which point Donald’s friend, who was driving, demanded that Oliver and his friends get out of her car. They complied, but as Donald and her friends drove away, Oliver drew a handgun he was carrying and fired it into the air.

A day and a half later, on April 30,2012, Ricardo Reese — who had recently become romantically involved with Donald — and one of his friends were socializing with Donald and one of her friends at Donald’s apartment when someone began knocking angrily on the front door. Looking through the door’s peephole, Reese’s friend, and then Donald, saw that it was Oliver who was demanding entry. Scared and still upset over their fight from the night before last, Donald refused to open the door for Oliver. But this refusal further angered Oliver, and a moment later, he sprinted around the apartment building to Donald’s back door and kicked it open.

Donald then fled upstairs and locked herself in a bathroom. Oliver followed, but after yelling at Donald to open the door for a minute or so, he walked back toward the stairs and told Donald’s visitors that the “party was over.” At that point, Reese directed a racial epithet at Oliver, removed his shirt, and started up the stairs. Oliver warned Reese that he did not want to fight, then drew his handgun, and from several feet away fired two shots into Reese’s chest, killing him. Immediately, everyone else in the apartment fled, including Oliver. But as Oliver reached the parking lot, Reese’s friend, who had retrieved a handgun from Reese’s car, began firing at him. Consequently, Oliver dashed off to some nearby woods and hid there until police officers eventually found and arrested him a short time later.

Thereafter, Oliver was charged, via indictment, with one count of malice murder; one count of aggravated assault; one count of burglary; two counts of felony murder, which were predicated upon the aggravated-assault and burglary charges, respectively; and two counts of possession of a firearm during the commission of a felony, which also were predicated upon the aggravated-assault and burglary charges respectively.

Prior to his trial, Oliver filed a notice of his intent to present evidence of Reese’s propensity for violence in support of his justification defense, i.e., that he shot Reese in self-defense. And following a pre-trial hearing on the issue, the trial court expressed serious skepticism as to whether such evidence was admissible. Nevertheless, the court reserved ruling on the issue and stated that Oliver would be allowed to make a proffer of the expected evidence at the appropriate time.

Oliver was then tried, during which the three witnesses to the shooting testified, as did the law-enforcement officers who investigated the incident. In addition, Oliver testified in his own defense, claiming that he shot Reese because he feared that Reese and his friend were about to attack him. And after this testimony, Oliver once again sought to present evidence of Reese’s propensity for violence. Specifically, he proffered that a defense witness would testify that Reese shot and injured the witness and his then 18-month-old son in 1992 (for which Reese pleaded guilty to two counts of aggravated assault), and that, subsequently, the witness learned that Reese had a reputation within the community for being prone to violence. But despite this proffer, the trial court ruled that such character evidence was inadmissible.

At the conclusion of the trial, the jury acquitted Oliver on the charges of malice murder, felony murder predicated upon burglary, and possession of a firearm during the commission of a burglary. However, the jury convicted him on the charges of voluntary manslaughter, as a lesser-included offense of the remaining felony-murder count, aggravated assault, criminal trespass, as a lesser-included offense of burglary, and possession of a firearm during the commission of an aggravated assault. Thereafter, Oliver obtained new counsel and filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

In his sole enumeration of error, Oliver contends that the trial court erred in excluding evidence of Reese’s propensity for violence. Specifically, he argues that the trial court erred in finding that, under OCGA §§ 24-4-404 (a) and 24-4-405, neither evidence of Reese’s reputation for being prone to violence nor his prior, specific violent acts were admissible. We do not agree that the exclusion of this evidence constitutes reversible error.

We first note that, as a general rule, admission of evidence is “a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” An abuse of discretion does, however, occur when the trial court significantly misapplies the law. With these guiding principles in mind, we turn now to Oliver’s specific claim of error.

Oliver was tried in April 2013, and therefore Georgia’s new Evidence Code was applicable. As such, we begin our analysis with the text of OCGA § 24-4-404 (a) (2), which closely tracks Federal Rule of Evidence 404 (a) (2):

Evidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for . . . [s]ubject to the limitations imposed by Code Section 24-4-412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor . . . .

In analyzing Federal Rule of Evidence 404 (a) (2), the federal courts have noted that the purpose of this rule is to provide “one of the few instances in which character evidence is admissible to allow the jury to infer that a person acted on a specific occasion in conformity with his character.” And when a defendant raises a self-defense claim, “reputation evidence of the victim’s violent character is relevant to show the victim as the proposed aggressor.”

Given the foregoing, Oliver contends that evidence of Reese’s propensity for violence was admissible at trial to support his self-defense claim under OCGA § 24-4-404 (a) (2). He therefore argues that the trial court erred by ruling otherwise and further erred by ruling that this evidence could not be presented via testimony about Reese’s reputation or specific instances of Reese’s violent conduct, pursuant to OCGA § 24-4-405. However, although the trial court subsequently analyzed this argument as an alternative basis for denying the admissibility of this evidence, the court initially found that the evidence of Reese’s propensity for violence was inadmissible because Oliver failed to make a required prima facie showing that he acted in self-defense in shooting Reese.

It is well established under Georgia law that

[f]or either the victim’s general reputation for violence or specific acts of violence by the victim to be admissible, the defendant must, among other procedural and substantive burdens, make a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant responded with force only to defend himself or herself.

And under the new Evidence Code, “[e]xcept as modified by statute, the common law as expounded by Georgia courts shall continue to be applied to the admission and exclusion of evidence and to procedures at trial.” In this instance, we find no reason to construe OCGA §§ 24-4-404 and 24-4-405 as a modification of Georgia’s longstanding requirement that a defendant must first make a prima facie showing of self-defense before requiring a trial court to determine whether evidence pertaining to the victim’s character is admissible.

And here, Oliver failed to make a prima facie showing that he acted in self-defense. As noted supra, the evidence below demonstrates that Reese was a guest of Oliver’s girlfriend, Donald, when Oliver arrived at her apartment uninvited, loudly banged on the front door while angrily demanding to be let inside, and then kicked in the back door before chasing Donald upstairs. Thus, when the unarmed Reese began walking up the stairs to confront him, Oliver was already the aggressor in the situation and had precipitated the deadly encounter that ensued. In fact, given the violent and tumultuous circumstances under which Oliver entered Donald’s apartment, Reese would have been justified in using force to subdue Oliver. Accordingly, the trial court did not abuse its discretion in finding that Oliver failed to make a prima facie showing that he acted in self-defense, and thus, excluding evidence of Reese’s propensity for violence.

Decided October 29, 2014.

Cynthia L. Bower, for appellant.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Given the foregoing circumstances, we conclude that Oliver’s failure to make a prima facie showing that he acted in self-defense necessarily means that he cannot satisfy OCGA § 24-4-404 (a) (2)’s requirement of demonstrating a “pertinent trait of character of the alleged victim of the crime.” As such, there is no need for us to address Oliver’s contention that the court incorrectly applied OCGA § 24-4-405.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        Martinez v. State, 306 Ga. App. 512, 525 (6) (702 SE2d 747) (2010) (punctuation omitted); see Burgess v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) (2013) (“On appeal, the admission of evidence is reviewed for an abuse of discretion.”).

        See State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011); Williams v. State, 277 Ga. 598, 601 (1) (e) (592 SE2d 848) (2004) (holding that when the trial court has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished).

        See Ga. L. 2011, p. 99, § 101.

        See Fed. R. Evid. 404 (a) (2).

       OCGA § 24-4-404 (a) (2) (emphasis supplied).

       Given the similarity between Georgia’s new Evidence Code and the Federal Rules of Evidence “it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014) (punctuation omitted); see also Williams v. State, 328 Ga. App. 876, 879 (1), n. 14 (763 SE2d 261) (2014).

        United States v. Keiser, 57 F3d 847, 854 (III) (A) (9th Cir. 1995).

        United States v. Taken Alive, 262 F3d 711, 714 (II) (8th Cir. 2001).

        See Keiser, 57 F3d at 855 (III) (B) (“After a court determines that character evidence is admissible under Rule 404, it must next turn to Rule 405 to determine what form that evidence may take.”); see also OCGA § 24-4-405 (a) (“In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.”); OCGA § 24-4-405 (b) (“In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person’s conduct. The character of the accused, including specific instances of the accused’s conduct, shall also be admissible in a presentencing hearing subject to the provisions of Code Section 17-10-2.”).

        Chambers v. State, 308 Ga. App. 748, 750 (1) (708 SE2d 651) (2011); see Collier v. State, 288 Ga. 756, 756 (2) (707 SE2d 102) (2011); Alexander v. State, 285 Ga. 166, 167 (2) (675 SE2d 23) (2009); Chandler v. State, 261 Ga. 402, 407 (3) (405 SE2d 669) (1991).

       OCGA § 24-1-2 (e).

        See Milner v. State, 281 Ga. 612, 613 (2) (641 SE2d 517) (2007) (holding that defendant failed to make a prima facie showing of justification for his actions, and thus, trial court did not err hy excluding evidence of murder victim’s prior acts of violence when evidence showed that victim began his confrontation with defendant after defendant brandished a gun and demanded that victim apologize for an earlier altercation); Phillips v. State, 271 Ga. 489, 490 (2) (521 SE2d 573) (1999) (holding that defendant failed to make prima facie showing that victim assaulted her or that defendant was honestly trying to defend herself, as required for admission of evidence of victim’s prior conviction, when evidence showed that defendant instigated the confrontation that led to victim approaching and offering to fight defendant); Walden v. State, 267 Ga. 162, 163 (2) (a) (476 SE2d 259) (1996) (holding that defendant’s testimony that his father advanced toward him with fists clenched did not show that his father assaulted him or that he was defending himself when he fatally shot father and, thus, failed to establish prima facie case of justification required for admission of evidence of father’s prior acts of violence); see

        also OCGA § 16-3-21 (b) (“A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he . . . (1) [ijnitially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant; (2) [i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or (3) [w]as the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.”); Brunson v. State, 293 Ga. 226, 227 (2) (744 SE2d 695) (2013) (“Aperson is not justified in using force when he is the aggressor or provokes the use of force against himself.”).

        See OCGA § 16-3-23 (1) (“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if. .. [t]he entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence. . . .”).


author: McFadden, Judge.

text:
    A14A0898.
    CANTRELL v. THE STATE.
    (765 SE2d 611)
   McFadden, Judge.

After a jury trial, Christopher Cantrell was convicted of child molestation, incest, and statutory rape. On appeal he challenges the trial court’s charge to the jury that it could “consider outcry statements made by a child as corroborative evidence.” He did not object to that charge at trial, so his burden here is to show plain error. He cannot carry that burden because his challenge to that charge entails a challenge to the soundness of existing case law which supports it. Accordingly, we affirm.

Decided October 29, 2014.

Mary Erickson, for appellant.

OCGA § 16-6-3 (a) provides: “A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” Cantrell argues that to allow outcry statements to corroborate statutory rape defies the plain meaning of the statutory rape law. Therefore, he argues, the trial court committed plain error by instructing the jury that the victim’s outcry statements were corroborative evidence.

In order to show plain error in the giving of a jury instruction, a defendant must show “that the . . . charge was erroneous, the error was obvious, the . . . charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. State, 295 Ga. 615, 617-618 (2) (759 SE2d 837) (2014) (citation omitted). Cantrell has not met this standard because he has not shown that any error in the jury charge was obvious.

We have expressly held that “a child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute sufficient substantive evidence of corroboration in a statutory rape case.” Ogles v. State, 218 Ga. App. 92, 93 (1) (b) (460 SE2d 866) (1995) (citation and punctuation omitted). See also Hill v. State, 295 Ga. App. 360, 361-362 (1) (671 SE2d 853) (2008), overruled on other grounds by Stuart v. State, 318 Ga. App. 839 (734 SE2d 814) (2012); Turner v. State, 223 Ga. App. 448, 450 (2) (477 SE2d 847) (1996); Long v. State, 189 Ga. App. 131, 132 (1) (375 SE2d 274) (1988). Pretermitting the merits of Cantrell’s argument that to allow outcry statements to corroborate statutory rape defies the plain meaning of the statutory rape law, “[gjiven that [our] case law runs contrary to [Cantrell’s] position, it cannot be seriously contended that the trial court committed clear or obvious error as required by the second prong of the plain error analysis.” Wilson v. State, 291 Ga. 458, 460 (729 SE2d 364) (2012) (citation and punctuation omitted).

Judgment affirmed.

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

Penny A. Penn, District Attorney, Jennifer L. Scalia, Assistant District Attorney, for appellee.


author: ELLINGTON, Presiding Judge.

text:
    A14A0910.
    DORN et al. v. GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES.
    (765 SE2d 385)
   ELLINGTON, Presiding Judge.

Paul Dorn, individually and as administrator of the estate of his son, Brooks Cameron Dorn (the “decedent”), sued the Georgia Department of Behavioral Health and Developmental Disabilities (the “Department”) for damages, contending that the Department’s negligence was the proximate cause of the decedent’s death. The trial court dismissed Dorn’s complaint for failure to comply with the ante litem notice provisions of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (“GTCA”) in that Dorn did not specify the amount of the loss claimed. On appeal, Dorn contends that he complied with the ante litem notice requirements notwithstanding that the notice did not state the dollar amount of the loss claimed and that the trial court therefore erred in dismissing his complaint. For the reasons that follow, we affirm.

The record shows that the decedent committed suicide on April 5, 2011, while on conditional release from a psychiatric facility operated by the Department. On January 9, 2012, Dorn presented, via certified mail, return receipt requested, his “Ante Litem Notice of Wrongful Death Claim” to the Risk Management Division of the Georgia Department of Administrative Services, and he provided a copy of the notice to the Department. Dorn’s notice did not state the dollar amount of the loss claimed. Rather, the notice stated that “[t]he amount of the loss suffered” is the “[m]onetary value of [the decedent’s] life in an amount sufficient to appropriately penalize State’s deliberately indifferent, negligent breach of State’s duty, and also in an amount sufficient to appropriately penalize State’s deliberately indifferent, negligent violation of [the decedent’s] rights.”

On March 28, 2013, Dorn filed suit against the Department to recover damages for personal injuries and wrongful death allegedly caused by the negligent acts or omissions of the Department. Contemporaneously with its answer, the Department filed a motion to dismiss the complaint for, among other things, Dorn’s failure to comply with the ante litem notice requirements set forth in the GTCA. The trial court dismissed the complaint because Dorn’s ante litem notice did not specify the monetary amount of loss claimed and so failed to comply with OCGA § 50-21-26 (a) (5) (E).

The GTCA is “a limited waiver of the State’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts.” (Citation omitted.) Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007). Among other things, “[t]he GTCA requires a party with a potential tort claim against the State to provide the State with notice of the claim prior to filing suit thereon. OCGA § 50-21-26.” Id. at 823. The ante litem notice requirements serve the purpose of “ensuring] that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.” Williams v. Ga. Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000).

A claimant must strictly comply with the notice provisions as a prerequisite to filing suit under the GTCA, and substantial compliance is not sufficient. Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 824; Ga. Dept. of Transp. v. Griggs, 322 Ga. App. 519, 520 (745 SE2d 749) (2013). However, “the rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purpose of the GTCA’s notice provisions.” (Citation omitted.) Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 824.

“If the ante litem notice requirements are not met, then the State does not waive sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.” Bd. of Regents of the Univ. System of Ga. v. Myers, 295 Ga. 843, 845 (764 SE2d 543) (2014). “We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (Citation and punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009).

Pertinent to this dispute, the GTCA requires that a written notice of claim “shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, . . . [t]he amount of the loss claimed])]” OCGA § 50-21-26 (a) (5) (E). Dorn contends that he complied with this provision because the GTCA does not require that the notice state the dollar amount of the claim, and that he stated the amount of the loss to the extent of his knowledge and belief as practicable under the circumstances given that a claim for wrongful death is an unliquidated claim.

As the Supreme Court of Georgia has explained, “the GTCA’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of [his] claim at the time [his] notice is submitted.” Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 825. The General Assembly “was certainly aware that certain losses in tort claims will always be difficult to value and are ultimately subject to an impartial jury’s enlightened conscience.” (Citation and punctuation omitted.) Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. at 846. See also Driscoll v. Bd. of Regents of Univ. System of Ga., 326 Ga. App. 315, 317 (757 SE2d 138) (2014) (“Anytime a life is lost, the inadequacy of the law’s remedial power is thrown into sharp relief.”). For this reason, the GTCA “does not require that a claimant give notice of the ‘entire loss,’ the ‘complete loss,’ or the ‘total loss.’ ” Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. at 846. But the plain language of the statute, as noted above, does require notice of the amount of the loss claimed at that time, within the belief and knowledge of the claimant, as may be practicable under the circumstances. Id.; Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 825. A claimant “is not relieved from giving some notice to the State [of the amount of the loss claimed] even if [his] knowledge is incomplete or [he] must rely on [his] belief.” (Citation and punctuation omitted; emphasis supplied.) Bd. of Regents of Univ. System of Ga. v. Myers, 295 Ga. at 846-847. See also Driscoll v. Bd. of Regents of Univ. System of Ga., 326 Ga. App. at 317-318 (accord).

In a recent case, this Court determined that a claimant’s ante litem notice failed to satisfy the notice requirement of OCGA § 50-21-26 (a) (5) (E) where the claimant for the loss of the life of another “made no mention of any amount of loss claimed even though his losses were completed, and there was nothing about the circumstances that prevented him from assigning values to his losses to the best of his knowledge and belief within the statutory deadline.” (Footnote omitted.) Driscoll v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 317. In this case, as in Driscoll, the loss was complete when Dorn submitted his ante litem notice. And, as in Driscoll, Dorn shows nothing that would have precluded him from assigning a value to the loss to the extent of his knowledge and belief.

Dorn argues that, unlike the notice at issue in Driscoll, his ante litem notice did not entirely lack any statement regarding the amount of loss. See Driscoll v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 318. However, as to the amount of the loss claimed, there is no material difference in the notice given to the State by Dorn and the notice at issue in Driscoll. The notice in Driscoll informed the State of a “claim for damages” and that the “Injury” involved “Loss of Life.” Id. at 315. Here, Dorn notified the State that “[t]he amount of the loss suffered” was the “[mjonetary value of [the decedent’s] life” in an amount sufficient to appropriately penalize the State for its conduct. In both cases the State was put on notice of a claim for wrongful death, but not the amount of the loss claimed. And as our precedent indicates, the “amount” of any loss claimed is the dollar amount of the loss claimed, albeit to the extent of the claimant’s knowledge and belief. See Driscoll v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 317 (noting that the fact that after serving his ante litem notice, the claimant communicated to the State a settlement demand listing specific dollar amounts for human life value and certain death-related expenses, “exemplified” the fact that “an amount of loss eventually must be determined if a party seeks monetary compensation”); Perdue v. Athens Technical College, 283 Ga. App. 404, 406 (641 SE2d 631) (2007) (dismissing complaint where the claimant’s ante litem notice failed to include any specific dollar amount or range of losses claimed but rather asserted only “economic and noneconomic losses” from a personal injury). See also OCGA § 50-21-22 (1) (defining “claim,” in applicable part, as “any demand against the State of Georgia for money’’).

Dorn contends that quantifying the amount of his claim would have necessitated reference to mortality tables, wage records, and perhaps an expert economist, none of which is required by the GTCA. Therefore, Dorn asserts, his ante litem notice stated the amount of his loss to the extent of his knowledge and belief, as practicable. As noted above, however, a claimant is not relieved from giving some notice to the State of the magnitude of his claim even if his knowledge is incomplete or he must rely on his belief. Bd. of Regents of the Univ. System of Ga. v. Myers, 295 Ga. at 847; Driscoll v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 318. Furthermore, the function of the ante litem notice is “not to ‘bind’ a plaintiff to a certain amount” or restrict the claimant to only those losses stated in the notice. Bd. of Regents of the Univ. System of Ga. v. Myers, 295 Ga. at 847. See also Driscoll v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 318 (accord). Accordingly, the trial court correctly ruled that Dorn’s ante litem notice failed to comply with OCGA § 50-21-26 (a) (5) (E).

Dorn maintains that the failure to quantify the amount of his claim should not be fatal to his complaint because the State suffered no prejudice thereby and because he was acting pro se at the time he submitted the ante litem notice. In Cummings, our Supreme Court considered whether an error in the claimant’s ante litem notice misidentifying the responsible agency prejudiced the State, but in that case the claimant, who undisputedly believed she had identified the correct agency, complied with the plain language of the ante litem notice provisions. See Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 825 (noting that “the plain language of the statute requires the identification of the agency asserted to be responsible, rather than identification of the agency actually responsible”) (footnote omitted; emphasis in original). In this case, Dorn did not comply with the plain language of the statute. See Driscoll v. Bd. of Regents of the Univ. System of Ga., 326 Ga. App. at 317 (finding notice failed to satisfy the GTCA notwithstanding that prejudice to the state was “arguably minimal”). Further, in Cummings the correct identity of the responsible agency was discovered by the State early in its investigation, and the State possessed “obviously superior knowledge regarding which of its agencies employ which of its employees.” Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 826, n. 3. In contrast, the claimant has superior, if not sole, knowledge of “[t]he amount of the loss claimed.” OCGA § 50-21-26 (a) (5) (E).

Nor does the fact that Dorn composed the ante litem notice while unrepresented by counsel excuse compliance with the statutory requirements. We acknowledge that the dismissal of Dorn’s complaint is a harsh result, perhaps even more so because Dorn drafted the notice while acting pro se. Nevertheless, “[a] 1 though [Dorn] is proceeding pro se, that status does not relieve him of the obligation to comply with the substantive and procedural requirements of the law[.]” (Citation omitted.) Simon v. City of Atlanta, 287 Ga. App. 119, 120 (650 SE2d 783) (2007). Dorn shows no authority for the proposition that a pro se litigant is exempt from a statutory obligation.

For the foregoing reasons, we conclude that the trial court did not err in dismissing Dorn’s complaint.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

Decided October 29, 2014.

Michael A. Mills, Troy A. Kiber, Rowen & Klonoski, Sharon L. Rowen, for appellants.

Samuel S. Olens, Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, for appellee.

       Dorn also refers us to Sikes v. Candler County, 247 Ga. 115 (274 SE2d 464) (1981), in which our Supreme Court disapproved of three decisions of this Court ‘‘insofar as they purport to create an inflexible requirement that presentation to a county of a claim [under OCGA § 32-2-6] must always contain a statement of the amount of damages in order to be sufficient under [OCGA § 36-11-1].” Id. at 118. Sikes is not controlling as it addresses statutes other than the GTCA. The GTCA expressly requires a statement of “[t]he amount of the loss claimed.” OCGA § 50-21-26 (a) (5) (E).

       The damages reeoverahle in a wrongful death action include the full value of the life of the decedent. OCGA §§ 51-4-1 (1); 51-4-2 (a), (e). “The full value of the decedent’s life is the economic value and the value of other noneconomic intangible items that the decedent would have attained to the end of his life had he lived.” (Citation omitted.) Carroll Fulmer Logistics Corp. v. Hines, 309 Ga. App. 695, 696 (710 SE2d 888) (2011).

       In his appellate brief, Dorn relies largely on this Court’s decision in Myers v. Bd. of Regents of the Univ. System of Ga., 324 Ga. App. 685 (751 SE2d 490) (2013), pointing out that we found that the notice of claim sufficient even though the claimant failed to specify the amount of the claim. The Supreme Court of Georgia, however, recently reversed our decision in Myers, holding that the claimant’s “notice failed to strictly comply with [OCGA § 50-21-26 (a) (5) (E)] because it did not state any amount of loss whatsoever,” noting that “the extent of her knowledge and belief at the time of notice included, at a minimum, the medical expenses she had incurred thus far.” Bd. of Regents of the Univ. System of Ga. v. Myers, 295 Ga. at 846.


author: Miller, Judge.

text:
    A14A1092.
    BAYO v. THE STATE.
    (765 SE2d 611)
   Miller, Judge.

Following a bench trial, Moustapha Bayo was convicted of one count of aggravated assault (OCGA § 16-5-21 (b) (1)) and one count of kidnapping (OCGA § 16-5-40 (a)). Bayo appeals from the denial of his new trial motion, contending that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the record in the light most favorable to the verdict. So viewed, the evidence shows that Bayo was the general manager of an IHOP restaurant owned by Joe Scripture. Scripture owns ten IHOP restaurants in the metro Atlanta area. Bayo was first hired as a server in 2003 and he worked his way up to general manager of Scripture’s South Cobb IHOP. In March 2010, Scripture loaned Bayo $1,000 so that Bayo could attend his mother’s memorial service.

In early May 2010, Bayo’s supervisor noticed that Bayo was not making the required daily cash deposits from the South Cobb IHOP to the bank. Bayo’s supervisor confronted Bayo about the missing deposits, and Bayo told him that he used the missing deposits to pay his rent. Bayo’s supervisor then went to the South Cobb IHOP and discovered that all of the money from the previous shift was missing from the safe. Surveillance footage showed Bayo taking the money out of the safe and placing it in his pocket. Bayo’s supervisor reported the theft to Scripture and the Cobb County police, and Bayo was terminated.

A few days later, on May 13, 2010, Scripture was at his office in Forsyth County around 9:00 a.m. Bayo came into Scripture’s office and said, “This is no joke. You’re dead mother fucker. I’m here to kill you.” Bayo was upset that he had been fired from his job. Bayo was holding a brown bag, and his hand was inside the bag. There appeared to be something inside the bag, and Scripture believed it was a gun. Bayo was agitated and yelling, and he ordered Scripture to lie down on the floor, which Scripture did. Bayo, who was still holding the bag, then ordered Scripture to stand up and said, “We’re going to walk down the hallway, if you try anything funny, if you make a move you’re a dead man.”

On Bayo’s orders, Scripture walked down the hallway and out of his office building into the parking lot. Bayo ordered Scripture into Scripture’s truck and told Scripture to drive. Scripture got into the driver seat, and Bayo got into the back seat. Bayo then ordered Scripture to call his wife and have her bring Bayo $250,000 within one hour or Scripture would be a dead man. Scripture drove out of the parking lot and, at Bayo’s direction, began driving north on Highway 9.

Bayo told Scripture that he wanted his job back. Scripture, fearing for his life, told Bayo that he did not need to worry about the stolen money and was not in trouble, that Scripture would not call the police, and that they could talk the next day about Bayo getting his job back. Bayo then told Scripture to pull over to the side of the road and roll down the rear passenger window. Scripture pulled over to the side of Highway 9, past Fowler Park, and rolled down the window, and Bayo threw the brown bag out of the window. Scripture then rolled up the window and continued to drive. Bayo told Scripture that he had no food for his family, and Scripture gave Bayo approximately $250.

Scripture asked Bayo to come into the front seat of the truck, so they could talk. Bayo crawled into the front seat, and Scripture saw that Bayo had a machete. Bayo said that he had come into Scripture’s office to kill him and showed him a white nylon rope with which Bayo had planned to tie him up.

Scripture drove back to his office and parked his truck there. Scripture and Bayo exited Scripture’s truck, and Bayo got into his own vehicle and drove away. Scripture went into his office and locked the door and called the police. Several officers arrived at Scripture’s office, and Scripture told police what had happened. Scripture told police where the bag had been thrown from his car and, that same day, police recovered a brown bag containing a car jack from alongside Highway 9. The bag was sitting on top of the grass, as though it had not been there long. Police also located Bayo’s fingerprints on the rear back seat exterior and interior of Scripture’s truck.

The next day, Scripture and police officers waited at Scripture’s office for Bayo to arrive to talk to Scripture about getting back his job. When Bayo did not arrive, Scripture called him. On the phone, Bayo apologized to Scripture for the way he had acted. Around 45 minutes later, Bayo arrived at Scripture’s office, and police arrested him. Police searched Bayo’s vehicle and found a white rope. The jack was also missing from Bayo’s vehicle.

Prior to trial, Bayo filed a motion to require the State to disclose exculpatory evidence by making Scripture available for examination and photographing of his naked body, including his genital area. Bayo attached to the motion an affidavit in which he averred that he had been involved in a sexual relationship with Scripture and could therefore describe with particularity Scripture’s stomach, back, and genital area, including the number and size of certain moles and the color of Scripture’s pubic hair. Bayo also averred that he had previously engaged in sex with Scripture in exchange for money. The trial court denied Bayo’s motion on the basis that the evidence sought was not relevant, but indicated that it would reconsider the motion if the evidence became relevant.

At trial, Bayo testified that in April 2010, he asked Scripture for a loan after his mother died, and Scripture offered Bayo $1,000 to have sex. Bayo agreed, Scripture rented a hotel room, and there they engaged in oral and anal sex. Bayo testified that he went to Scripture’s office on May 13, 2010 to explain the missing deposit money. According to Bayo, Scripture offered him a position at another IHOP, pulled down Bayo’s pants and began performing oral sex on him. Scripture asked Bayo to go to a hotel, and they both got into Scripture’s truck. Bayo testified that he then told Scripture that he would not have sex with him in order to get his job back and Scripture got mad and threatened Bayo. Scripture denied that he and Bayo had sex or otherwise had a personal relationship.

In his sole enumeration of error, Bayo contends that his trial counsel rendered ineffective assistance by failing to renew his motion to force Scripture to disrobe and be examined naked. We disagree. (Citations and punctuation omitted.) Hampton v. State, 279 Ga. 625, 626-627 (619 SE2d 616) (2005).

In order to prevail on a claim of ineffective assistance, [Bayo] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Bayo] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Bayo] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

Decided October 29, 2014.

No statutory authority nor case law mandates the involuntary examination of a victim. See Park v. State, 230 Ga. App. 274, 275 (1) (495 SE2d 886) (1998) (defendant cannot force victim to undergo medical examination); see also State v. Haynie, 240 Ga. 866, 867-868 (242 SE2d 713) (1978) (defendant cannot force victim to have bullet surgically removed from his body); J. B. v. State, 171 Ga. App. 373, 376 (4) (319 SE2d 465) (1984) (defendant cannot force victim to undergo psychiatric examination). Furthermore, “[t]he Fourth Amendment right of the victim to be secure against an unreasonable search must prevail over the right of the accused to obtain evidence for his defense. Just as victims may decline to be interviewed by defense counsel, they may also decline to be examined[.]” (Footnote omitted.) Park, supra, 230 Ga. App. at 275 (1).

Here, Bayo was not entitled to force Scripture, a crime victim, to disrobe for examination, and trial counsel cannot be considered deficient in failing to renew a futile motion. “It is axiomatic that the failure to pursue a futile motion does not constitute ineffective assistance.” (Citation and punctuation omitted.) Littlejohn v. State, 320 Ga. App. 197, 208 (5) (a) (iii) (739 SE2d 682) (2013). Nonetheless, we note that trial counsel adequately protected Bayo’s rights by subiecting Scripture to a lengthy cross-examination. See Park, supra, 230 Ga. App. at 275 (1).

Moreover, at the hearing on Bayo’s motion for new trial, trial counsel testified that he did not think that renewing the motion would be helpful to Bayo’s case, because, despite following every lead, trial counsel had not been able to find any other evidence to verify Bayo’s alleged relationship with Scripture, and trial counsel was not confident that Bayo could give an accurate description of Scripture’s body. It is clear based on trial counsel’s testimony that not renewing the motion was part of counsel’s trial strategy. “This Court has repeatedly held that trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citation and punctuation omitted.) Walker v. State, 322 Ga. App. 180, 183 (2) (744 SE2d 366) (2013).

Finally, in light of the overwhelming evidence of Bayo’s guilt, as set forth above, there is no reasonable probability that the outcome of the trial would have been different but for trial counsel’s alleged error. Accordingly, we affirm Bayo’s conviction.

Judgment affirmed.

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

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, Heather N. Dunn, Assistant District Attorney, for appellee.

       Prior to trial, the State dismissed one count of armed robbery (OCGA § 16-8-41).

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


text:
    A14A1284.
    HOLMAN v. THE STATE.
    (765 SE2d 614)
   Dillard, Judge.

Following a trial by jury, Ulysses Holman was convicted of driving under the influence to the extent that he was less-safe to drive (DUI less safe) and serious injury by vehicle. On appeal from these convictions, Holman contends that (1) the evidence is insufficient to sustain his convictions, (2) the trial court erred by giving certain instructions to the jury, and (3) he received ineffective assistance of counsel when his attorney failed to object to improper opinion testimony. For the reasons set forth infra, we affirm.

1. At the outset, before addressing the facts of this case or Holman’s enumerations of error, we note that this Court previously issued an opinion in this appeal on September 9, 2014 (which has since been recalled and vacated), in which we also affirmed Holman’s convictions, albeit for a different reason. In that original opinion, we based our decision on the fact that in his notice of appeal, Holman did not request that a trial transcript be included as part of the appellate record. And because no transcript was requested, we believed that a transcript had not been transmitted to this Court for our review.

Specifically, we affirmed Holman’s convictions in that earlier opinion because OCGA § 5-6-37 dictates that a notice of appeal shall set forth, inter alia, “a designation of those portions of the record to be omitted from the record on appeal,” and “[ijn addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.” But here, Holman’s notice of appeal stated only that nothing should be omitted from the record on appeal. The notice did not request that a transcript of evidence and proceedings be transmitted to this Court as a part of the appellate record, and, in such a case, we are not at liberty to infer otherwise. Indeed, as our Supreme Court has explicitly held, “[t]he specification that ‘nothing’ is to be omitted from the record would not infer that the transcript is to be included, since the appellant is required to state whether the transcript will be filed, in addition to designating any portion of the record to be omitted.”

The apparent absence of the trial transcript in the case sub judice made it impossible for this Court to review Holman’s enumerations of error concerning the sufficiency of the evidence, the court’s instructions to the jury, and trial counsel’s allegedly ineffective assistance. And it is well established that it is the burden of the complaining party to “compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.” Additionally, when no transcript is included in the record on appeal we “must assume that the evidence was sufficient to support the judgment.” We therefore affirmed the judgment of the trial court on this ground.

On September 22, 2014, Holman’s counsel belatedly filed a Notice of Intention to Apply for Writ of Certiorari to the Supreme Court of Georgia, rather than filing a motion for reconsideration. On September 30,2014, Holman — not his counsel — called this Court’s clerk’s office to make inquiry regarding the reasons for our disposition in the prior appeal and was directed to speak with his counsel regarding same. Nevertheless, following that call, our clerk’s office, on its own initiative, discovered that a transcript of proceedings was indeed transmitted to this Court in a prior appeal by Holman.

On March 29, 2012, Case No. A12A1504 was docketed with this Court, and in that case, Holman sought to appeal the same convictions at issue in the case now before us. At that time, Holman filed his appeal pro se and, as is the case in his current appeal, did not specify in his notice of appeal whether or not a transcript of evidence and proceedings were to be transmitted to this Court. Nevertheless, it appears that the lower court sua sponte transmitted all available transcripts despite Holman’s failure to comply with OCGA § 5-6-37.

However, prior to filing an appellate brief in Case No. A12A1504, Holman filed a motion to remand the case to the trial court for the appointment of appellate counsel, which we granted on May 11,2012; and on that same date, we issued a remittitur to the lower court. Thereafter, in May 2012, the trial court appointed appellate counsel to represent Holman; however, no appeal was filed and a Motion for Out of Time Appeal was granted on January 30, 2013. But still, no appeal was filed until after Holman and the State subsequently entered into a consent order for the filing of an out-of-time-appeal in September 2013. Finally, a notice of appeal in the current case was filed on September 16, 2013, the contents of which are described supra.

During the investigation that ensued in our clerk’s office following the September 30, 2014 phone call from Holman, this Court discovered that in early February 2014, the trial court called this Court to inform it that a second appeal would be forthcoming, at which point a hold was placed on the record from the prior appeal in order to preserve it. This proved to be a stroke of luck for Holman because: (1) the record from Case No. A12A1504 had not already been recycled by this Court; and (2) it was, once again, the trial court that undertook the responsibility of ensuring that a transcript was included on appeal despite Holman’s repeated failures to make any of the statutorily-required specifications in his notice of appeal.

In sum, neither Holman nor Holman’s counsel took any action to ensure that (1) the transcript transmitted sua sponte by the trial court in the prior appeal was held in this Court for use in the subsequent appeal or (2) this Court was aware that Holman intended to use the transcript transmitted with the prior appeal as the transcript in the current appeal. Indeed, although the trial court requested that the transcript be held over a year after the remittitur had been issued in the prior appeal (and after Holman filed his statutorily deficient notice of appeal), it was, nevertheless, Holman who had a statutory duty to include in his notice of appeal that no transcript was to be transmitted with the current appeal. And to the extent Holman wished to rely upon the transcript transmitted by the trial court in the prior appeal (which was being held in this Court as a matter of courtesy to the trial court), he had a duty under OCGA § 5-6-37 to specify in the notice of appeal that he was not requesting the transmission of the transcript in this appeal because one had previously been transmitted in a prior appeal and was already on hold at the Court. Suffice it to say, even when this Court has been notified by an appellant that a transcript should be placed on hold, it remains the “primary responsibility of the appropriate parties and not this[CJourt to ensure that all documents relevant to the disposition of an appeal be duly filed with the clerk of this [Cjourt prior to the issuance of our appellate decision.” As such, an appellant must include in the notice of appeal his or her intention to rely upon a previously transmitted transcript in order to satisfy the dictates of OCGA § 5-6-37. This, Holman did not do. And one cannot complain of an appellate ruling, order, or judgment that “his own legal strategy, appellate procedure or conduct aided in causing.”

Nevertheless, despite the repeated procedural errors by Holman, and despite appellate counsel’s election to bypass the filing of a motion for reconsideration, we chose to sua sponte vacate our prior opinion and reinstate this case to address Holman’s enumerations of error on the merits. We did so because our Court had not yet addressed the unique procedural situation presented by this appeal in a published opinion. This opinion, then, shall serve to place future appellants on notice that similar procedural errors may result in automatic affirmance of a trial court’s decision.

2. As previously noted, Holman argues that his convictions must be overturned because (1) the evidence is insufficient to sustain those convictions, (2) the trial court erred by giving certain instructions to the jury, and (3) he received ineffective assistance of counsel when his attorney failed to object to improper opinion testimony. We disagree.

Viewed in the light most favorable to the jury’s verdict, the record reflects that in the late afternoon of June 30, 2007, Holman was traveling on Interstate 85 when his car crossed the median and made impact with the elderly victim’s vehicle. As a result of this collision, the victim lost consciousness at the scene, sustained lacerations to the face, bruising to the chest, bruising to internal organs, a fractured vertebrae, and an injury to the bowel that was so severe it required removal of a portion of that organ and left the victim with bulging intestines.

Witnesses to the crash testified that, prior to the accident, Holman’s vehicle weaved around the road; was traveling at over 75 miles per hour, or at an “incredible rate of speed”; aggressively passed other cars on the interstate; and then careened over the median, fish-tailed across the road, and struck the victim’s vehicle. One of these witnesses also testified that when she approached Holman to render aid, she immediately noticed that he “reeked” of an alcoholic beverage and had “very, very red” eyes.

Likewise, the responding law-enforcement officer testified that Holman smelled of an alcoholic beverage, had watery and bloodshot eyes, and spoke with slurred, slow speech. The officer also testified that Holman did not understand an initial explanation of Georgia’s implied-consent notice and became irate and belligerent when the officer explained it again before refusing to consent to a State-administered chemical test because he “knew” that he would have alcohol in his system. According to the officer, Holman also admitted to drinking heavily the night before, with his last beverage being consumed at approximately 5:00 a.m. Lastly, the officer testified that, given the foregoing, he considered Holman an impaired driver. Holman was convicted by a jury of the offenses enumerated supra, and this appeal follows.

At the outset, we note that on appeal from a criminal conviction, “the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” With this guiding principle in mind, we turn now to Holman’s enumerations of error.

(a) Sufficiency of the Evidence. Holman first contends that the evidence is insufficient to sustain his convictions for DUI less safe and serious injury by vehicle. We disagree.

First, a person commits the offense of DUI less safe when he or she is in physical control of a moving vehicle while “[ujnder the influence of alcohol to the extent that it is less safe for the person to drive----” And here, there was testimony that prior to the accident, Holman was driving aggressively at an excessive rate of speed, weaving about the road before crossing the median and making impact with the victim’s car. There was also testimony from a witness and law-enforcement officer that Holman “reeked” of an alcoholic beverage, had “very, very red” and bloodshot eyes, spoke with slurred speech, became belligerent, refused to submit to a State-administered test because he “knew” it would test positive for alcohol, and admitted to drinking heavily the night before. Accordingly, this evidence was sufficient to sustain Holman’s conviction for DUI less safe.

Second, a person commits the offense of serious injury by vehicle when he or she,

without malice, . . . cause [s] bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 . . . ,

Holman does not challenge the sufficiency of the evidence to establish that he caused the requisite bodily harm, but instead contends that the evidence is insufficient to sustain his conviction in this regard because the State failed to prove that he was guilty of DUI less safe. However, as explained supra, the State presented sufficient evidence to sustain the conviction for DUI less safe and, accordingly, presented sufficient evidence to sustain Holman’s conviction for serious injury by vehicle.

(b) Charges to the Jury. Next, Holman takes issue with the trial court’s charges to the jury as to his refusal to submit to a State-administered chemical test and as to serious injury by vehicle. Again, we disagree.

(i) As to his refusal to submit to the State-administered chemical test, Holman alleges that the trial court erred by instructing the jury as follows:

A Defendant’s refusal to take a requested chemical test may be considered as positive evidence creating an inference that the test would show the presence of alcohol. However, such an inference may be rebutted.

Holman contends that this instruction improperly shifted the burden of proof, but we have previously rejected this very same argument with regard to an identical instruction. Thus, this enumeration is wholly without merit.

(ii) As to the serious-injury-by-motor-vehicle instruction, Holman contends that the trial court gave the charge in such a way as to permit the jury to convict him in a manner not alleged in the indictment when the court included all of the various ways in which the crime may be committed, including “organic brain injury.” And here, the indictment alleged that Holman committed the offense by “depriving [the victim] of a member of his body and by rendering a member of his body useless, to wit, a closed head injury, resulting in a loss of consciousness, laceration of the right brow, bruised liver and injury to his spine . . . .”

It is unquestionable that, in criminal prosecutions, “the court’s instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial.” In particular, this is true when the offense charged “may be committed in one of several ways, but the indictment charges one specific method.” Indeed, averments in an indictment as to the specific manner in which a crime was committed are “not mere surplusage,” and “[s]uch averments must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.” Accordingly, the instructions from the trial court must “sufficiently limit the jury’s consideration to the allegations and elements of the offense as charged in the indictment.” And in determining whether a charge contained error, “jury instructions must be read and considered as a whole.”

Here, the trial court erred by adding “organic brain injury” to its jury charge. Nevertheless, any defect in the charge was cured by the jury being provided with the indictment and instructed that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged. Accordingly, the trial court’s charge did not constitute reversible error.

(c) Ineffective Assistance of Counsel. Finally, Holman asserts that he received ineffective assistance of counsel when his attorney failed to object to the officer’s testimony that he considered Holman an impaired driver, arguing that this testimony went to the ultimate issue before the jury. Once again, we disagree.

First, we note that, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that “(1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” When a trial court determines that a defendant did not receive ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous, and here we discern no such error.

Decided October 29, 2014

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.

It is well established that a defendant cannot show ineffective assistance of counsel by the failure to make a meritless objection. And here, any objection to this testimony would have lacked merit because an officer may testify that, in his opinion, a defendant was an impaired, or a less safe, driver. Thus, Holman did not receive ineffective assistance in this regard.

Accordingly, for all the foregoing reasons, we affirm Holman’s convictions.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

       OCGA § 5-6-37.

        Steadham v. State of Ga., 224 Ga. 78, 80 (1) (159 SE2d 397) (1968); accord Tempo Carpet Co. v. Collectible Classic Cars of Ga., Inc., 166 Ga. App. 564, 564 (305 SE2d 26) (1983).

        See Okeke v. State, 272 Ga. App. 529, 529 (613 SE2d 125) (2005) (“The absence of the trial transcript makes it impossible for this Court to review [the appellant’s] enumerations of error concerning the sufficiency of the evidence, the admission of evidence, and other rulings below.”); Watts v. State, 258 Ga. App. 579, 579 (574 SE2d 567) (2002) (“The absence of the trial and sentencing transcripts makes it impossible for this Court to review [the appellant’s] various enumerations of error concerning factual merger, double jeopardy, and improper sentencing.”).

        Okeke, 272 Ga. App. at 529 (punctuation omitted); accord Watts, 258 Ga. App. at 579.

        Tempo Carpet Co., 166 Ga. App. at 564 (punctuation omitted).

        See Okeke, 272 Ga. App. at 529; Watts, 258 Ga. App. at 579; see also Arnold v. State, 276 Ga. App. 680, 681 (624 SE2d 258) (2005) (holding, when appellant “did not request that the entire record be transmitted to this Court on appeal,” that “we must assume that the trial court ruled correctly and affirm”).

        See Court of Appeals Rule 38 (a) (1) (“Notice of intention to petition for a writ of certiorari shall be filed with the Clerk of this Court within.10 days after the judgment or, if motion for reconsideration is filed, within 10 days after the order ruling on reconsideration. Filing a motion for reconsideration is not a prerequisite for filing a petition for writ of certiorari.” (emphasis supplied)).

        See Court of Appeals Rule 37 (specifying the procedures for filing motions for reconsideration).

       We note that the current appeal was not docketed until March 13, 2014.

       It is the policy of the Court of Appeals to recycle records one year after a remittitur issues to the trial court unless one or more parties request a hold (and again, a remittitur issued in the prior appeal in May 2012). See Court of Appeals Rule 42 (b) (“One year after the remittitur has issued, the party paying for the record and transcript may claim them. Otherwise, all records, record appendices and transcripts shall be recycled, unless the parties notify the Clerk, in writing, that the record should be maintained, and the reason therefor.”). In fact, in any Notice of Remittitur issued to parties, this Court includes the following notice in bold:
      THIS COURT WILL DESTROY THE CASE RECORD AND TRANSCRIPTS ONE YEAR AFTER THE REMITTITUR DATE ABOVE.
      The Court will maintain the record and/or transcript in the above appeal for a period of one year after the remittitur date unless one or more of the parties notifies the Court, in writing, to maintain the record for an additional six months, and the reason therefor. The requesting party must send an additional request fourteen days before the expiration of each sixth-month period to avoid the record being destroyed. You will receive no further notice before the record is destroyed.
      The original record will remain in the trial court.
      The Court will preserve the Briefs, Orders, Substantive Motions, Opinions, Docketing Notices, and other documents in some format that will be available for inspection at either our office or at The Georgia Department of Archives.

        See OCGA § 5-6-37. We note here that in one of many motions for new trial that Holman filed pro se in the lower court, he appears to have attached as an exhibit a full transcript from the trial of his case, which resulted in a duplicate of the transcript appearing in the record. See Steadham, 224 Ga. at 80 (1) (suggesting that the record and transcript are two separate entities by explaining that “[t]he specification that ‘nothing’ is to be omitted from the record would not infer that the transcript is to be included, since the appellant is required to state whether the transcript will be filed, in addition to designating any portion of the record to be omitted”). This does not, however, amount to a lawful transmission of the transcript to this Court. See OCGA § 5-6-41 (e) (“Where a civil or criminal trial is reported by a court reporter and the evidence and proceedings are transcribed, the reporter shall complete the transcript and file the original and one copy thereof with the clerk of the trial court, together with the court reporter’s certificate attesting to the correctness thereof.”); OCGA § 5-6-42 (“Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by Code Section 5-6-41____”); OCGA § 5-6-43 (a) (“Within five days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee, as the case may be, it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, together with a copy of the notice of appeal and copy of any notice of cross appeal, with date of filing thereon, and transmit the same, together with the transcript of evidence and proceedings, to the appellate court, together with his certificate as to the correctness of the record.”); see also Chaneey v. State, 256 Ga. 415, 435-36 (11) (349 SE2d 717) (1986) (“Where the appealing party is the defendant in a felony case, and where the defendant states in his notice of appeal that a transcript is to be transmitted as part of the appellate record, it is the defendant’s statutorily mandated duty to cause the court reporter to prepare and file an original and one copy of the transcript with the clerk of the trial court within 30 days after the filing of the notice of appeal unless an extension of time is obtained.”); cf. Grimes v. Slaughter, 217 Ga. 116, 116-17 (121 SE2d 110) (1961) (“Where, as in the present case, the documentary evidence essential to a determination of the error complained of is not incorporated in the bill of exceptions, or attached as an exhibit and properly identified by the trial judge, or embodied in an approved transcript of the evidence, it has not been brought to this court in the manner prescribed by law, and can not be considered as evidence.”).

       The most that can be said about any such attempt by Holman is that, on March 25,2014 (prior to filing the appellant’s brief), his appellate counsel filed a motion to consolidate/motion for joinder of Case No. A12A1504 and Case No. A14A1284. And after setting forth the procedural history of the prior remand, the motion requested the following: “Because both Court of Appeals case numbers refer to the same Superior Court case, Appellant moves to join the two Court of Appeals case numbers.” But the motion made no reference whatsoever to the previously transmitted transcript and, based on its vague request, was denied as moot. Thus, such a motion does not — and, in fact, did not — put this Court on notice that Holman intended to use the transcript from his previous appeal in this appeal.

        See OCGA § 5-6-37.

        Williams v. Food Lion, Inc., 213 Ga. App. 865, 867-68 (446 SE2d 221) (1994) (on motion for reconsideration).

        Id.

        See Court of Appeals Rule 37 (e) (“A reconsideration will be granted on motion of the requesting party, only when it appears that the Court overlooked a material fact in the record, a statute or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneously construed or misapplied a provision of law or a controlling authority.”).

       We note that Holman had not yet filed a petition for writ of certiorari when we vacated the original opinion. As such, this Court retained jurisdiction over the appeal at the time the original opinion was recalled by the panel. Cf. Ga. Const. Art. 6, § 1, ¶ 4 (“Each court may exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments . . . .”).

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330 (682 SE2d 671) (2009).

        Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013) (punctuation omitted).

       OCGA § 40-6-391 (a) (1).

        See, e.g., Hoffman v. State, 275 Ga. App. 356, 358 (1) (620 SE2d 598) (2005) (holding that evidence was sufficient to sustain conviction based on defendant’s “driving maneuvers, odor of alcohol, appearance, and refusal to submit to the field sobriety evaluations, together with [officer’s] opinion that [defendant] was under the influence to the extent that he was a less safe driver”); Drogan v. State, 272 Ga. App. 645, 647 (1) (b) (613 SE2d 195) (2005) (“Methods of proof may include evidence of (i) erratic driving behavior, (ii) refusal to take field sobriety tests and the breath or blood test, and (iii) the officer’s own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that the alcohol made it less safe for the defendant to drive.”).

       OCGA § 40-6-394.

        See OCGA § 40-6-391 (a) (1).

        See Dorsey v. State, 327 Ga. App. 226, 229 (3) (757 SE2d 880) (2014) (“[Appellant] does not challenge the sufficiency of the evidence to establish that he caused the officer bodily harm for purposes of the crime. Rather, he asserts that the evidence was not sufficient to show that he violated OCGA § 40-6-391, as required by the statute. However, as discussed supra, the evidence was sufficient to show that [appellant] was guilty of DUI less safe. Accordingly, we find that any rational trier of fact could have found [appellant] guilty beyond a reasonable doubt of serious injury by vehicle.”).

        See Bravo v. State, 249 Ga. App. 433, 434-35 (2) (548 SE2d 129) (2001) (“The charge given by the court involved a permissive, not a mandatory, inference. Instructing a jury that they ‘may’ infer the presence of alcohol is far different from an instruction that such fact ‘shall’ be inferred.”); see also Crusselle v. State, 303 Ga. App. 879, 883 (2) (b) (694 SE2d 707) (2010) (reiterating the holding in Bravo).

        Boatright v. State, 308 Ga. App. 266, 272 (1) (e) (707 SE2d 158) (2011) (punctuation omitted); see also Lumpkin v. State, 249 Ga. 834, 835-37 (2) (295 SE2d 86) (1982) (addressing trial court’s failure to limit jury instruction to manner charged in the indictment but holding that any error was cured by limiting instruction).

       Boatright, 308 Ga. App. at 272 (1) (e) (punctuation omitted); see also Lumpkin, 249 Ga. at 836 (2) (acknowledging that it is “reversible error to charge that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method, and then charge the jury that they may convict the defendant if they find he committed the offense by a method other than the specific type charged in the indictment” (punctuation omitted)).

        Boatright, 308 Ga. App. at 272-73 (1) (e) (punctuation omitted).

        Id. (punctuation omitted); see also Lumpkin, 249 Ga. at 836 (2) (acknowledging that, when “no remedial instructions [are] given, [such a] charge [is] erroneous as a matter of law because of a fatal variance between the proof at trial and the indictment returned by the grand jury”).

        Boatright, 308 Ga. App. at 273 (1) (e); see also Lumpkin, 249 Ga. at 836 (2).

        Boatright, 308 Ga. App. at 273 (1) (e); see also Lumpkin, 249 Ga. at 836-37 (2) (“While the specific portion of the charge of which complaint is made when torn asunder and considered as a disjointed fragment may be objectionable, when put together and considered as a whole, the charge is perfectly sound.” (punctuation omitted)).

        See, e.g., Short v. State, 276 Ga. App. 340, 349 (9) (623 SE2d 195) (2005) (holding that a defect to a jury instruction is cured when “the trial court provides the indictment to the jury and instructs that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged”); see also Green v. State, 240 Ga. App. 377, 379-80 (4) (523 SE2d 581) (1999).

        Muldrow v. State, 322 Ga. App. 190, 193 (2) (b) (744 SE2d 413) (2013) (punctuation omitted); accord Owens v. State, 317 Ga. App. 821, 823 (1) (733 SE2d 16) (2012).

        Muldrow, 322 Ga. App. at 193 (2) (b); Owens, 317 Ga. App. at 823 (1).

        Porras v. State, 295 Ga. 412, 420 (3) n.8 (761 SE2d 6) (2014) (“[Tjhe failure to make a meritless objection cannot amount to ineffective assistance.” (punctuation omitted)); accord Bradley v. State, 292 Ga. 607, 614 (5) (740 SE2d 100) (2013).

        See, e.g., Driver v. State, 240 Ga. App. 513, 515 (3) (523 SE2d 919) (1999) (“[W]e hold that a court in its discretion may allow a trained and experienced officer ... to render [an opinion that the driver was under the influence of alcohol to the extent that she was less-safe to drive] based on the officer’s personal observations of the defendant.”); Church v. State, 210 Ga. App. 670, 671 (2) (436 SE2d 809) (1993) (holding that trial court did not err in permitting testimony by officer that his opinion was that defendant was a less-safe driver).