author: PHIPPS, Presiding Judge.

text:
    A16A0923.
    In re THOMPSON.
    (793 SE2d 462)
   PHIPPS, Presiding Judge.

Attorney Curt Thompson appeals an order finding him in criminal contempt of the State Court of Douglas County. He contends that he was denied due process because he was not given notice that he faced a criminal charge and did not knowingly waive his right to counsel, that the trial judge should have recused himself sua sponte, and that the evidence was insufficient. For the following reason, we reverse.

The record shows that Thompson, a solo practitioner and state senator, represented a contractor sued for breach of contract in the Magistrate Court of Douglas County At the plaintiff’s request, the action was transferred to state court in December 2014. In early February 2015, pursuant to OCGA § 9-10-150, Thompson filed a motion to stay the case until after the conclusion of the Georgia legislative session. The trial court granted this motion, and in June 2015, the plaintiff filed a request to have the case placed on the next available bench trial calendar. Although the notice of hearing is not part of the record on appeal, Thompson did not dispute that he received notice of a bench trial date of September 24, 2015.

On October 2, 2015, the trial court signed an “Order on Contempt,” setting a hearing for November 2, 2015, and ordering Thompson “to show-cause why he should not be held in contempt” (“the show-cause order”) based on his conduct with respect to the scheduled bench trial. Specifically, in the three-page order, the trial court outlined the facts as follows: on September 22, 2015, Thompson e-mailed the court that he had found out the day before that he had two criminal cases being called for trial in the Superior Court of DeKalb County on September 24, 2015, the same day as the scheduled bench trial. Thompson stated he did not anticipate being finished with those cases in one day and would be unable to appear for the bench trial. Thompson sent a conflict letter (attached to the court’s order), which added that the criminal cases “were being called forward” at 9:00 a.m. on September 24.

According to the show-cause order, however, the court’s (unnamed) law clerk had contacted the DeKalb County Clerk’s Office and was informed that neither of Thompson’s two cases was on a jury trial calendar for that week but that they were scheduled for probation revocation hearings on October 1, 2015. The law clerk telephoned Thompson at about 3:30 p.m. on September 24, and Thompson told her one of his cases had gone forward, that he had argued a motion before the court in DeKalb County that day, and that they were getting ready to strike a jury on the morning of September 25, 2015, for that case. Thompson had been unable to recall the name of the DeKalb County judge but had promised to provide this information by the end of the day The law clerk sent a follow-up e-mail to Thompson asking for this information on September 25, but as of the date of the show-cause order (October 2), Thompson had not provided the name of the judge.

At the show-cause hearing, the state called Sangeetha Krishna - kumar, who testified that she was the law clerk for the trial judge and another state court judge. She testified that on September 22, 2015, Thompson had e-mailed her that he had a conflict in DeKalb County and would not be able to make it to the hearing on September 24. A printout of Thompson’s e-mail and her reply were introduced into evidence. Krishnakumar testified further that she had called the DeKalb County Clerk’s office to ascertain the name of the judge, using the case numbers from Thompson’s conflict letter, and had spoken with that judge’s judicial assistant, Trudy Darby

Darby also testified that only one case was on the calendar the week of September 21, 2015. Thompson’s two cases involved probation violation charges that were filed on September 22, 2015, and were set for a hearing on October 1, 2015.

After the prosecution rested, Thompson testified that when he found out about the October 1 probation revocation hearing, he contacted his client’s probation officer, the Superior Court of DeKalb County, and the district attorney’s office because he had a legislative conflict that required him to be in Washington, D.C. that day. At the probation officer’s suggestion, he decided to go to court in DeKalb County on September 24 to see if he could resolve the matter early with a consent order. He acknowledged that he did not give the Douglas County court the “entire story” but claimed he had not intended to deceive the court.

When he arrived at the DeKalb County courtroom on September 24, a trial was taking place. After sitting in the courtroom for 30 minutes, Thompson left to “find out what was going on [and discovered that] the order had not been given apparently to bring [his client] over.” Thompson did not recall telling the law clerk that the DeKalb County case was going to trial; he instead told her that his client had another charge pending in Clayton County that he believed was going to trial. Thompson added that he had been having problems with his e-mail account, that his office assistant was in the hospital, and that he was not working at his best as he relied on his assistant to keep his solo practice running.

The trial court found Thompson in indirect criminal contempt of court beyond a reasonable doubt and ordered him to spend ten days in jail. The court found that Thompson had not complied with the conflict rules because his conflict letter was not timely, he had not listed the name of the DeKalb County judge or suggested a possible solution to the conflict, and he did not report back to the court once the conflict was resolved.

The court found that the “more disturbing issue” was that Thompson “allegedly [was] being untruthful with the Court, and in particular Ms. Krishnakumar, the law clerk of the Court, which basically she represents the Court [sic]Specifically, the court did not find credible Thompson’s denial of the statements to Krishnakumar, his testimony that he had a consent worked out in the probation revocations, or that he was even in court in DeKalb County on September 24. The trial court found that Thompson’s “excuses” were not plausible and, even if true, they would not justify his conduct. Further, his failure to give the name of the DeKalb County judge was evidence of dishonesty, and continuing to adhere to his account indicated lack of remorse. The court found that Thompson had intentionally provided false information to the court and that his conduct was wilful.

1. Thompson argues that he was denied due process because the show-cause order did not inform him of the possibility of incarceration or a “penal fine.” He claims that not realizing the potential consequences, he represented himself at the hearing without making a knowing, intelligent, and voluntary waiver of the benefit of counsel.

“[Cjriminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.” “[Cjriminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.”

Direct acts of contempt, which occur within the sensory perception of the judge, typically in open court, may be punished summarily to preserve order. For indirect contempt, however, due process requires that the person charged “must, inter alia, be advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses.” For serious criminal contempt involving imprisonment of more than six months, the alleged contemnor additionally has the right to a jury trial.

Although an alleged contemnor facing imprisonment may waive his right to counsel, such waiver must be made knowingly, intelligently, and voluntarily.

The court need not use any magic words to determine if a valid waiver was made, but the State has the burden of showing from the record that the defendant understood (1) the nature of the charges against him, (2) any statutory lesser included offenses, (3) the range of possible punishments for the charges, (4) possible defenses, (5) mitigating circumstances, and (6) any other facts necessary for a broad understanding of the matter. Otherwise, there is no valid waiver.

Decided October 27, 2016

Wilson Morton & Downs, James E. Spence, Jr., for appellant.

Matthew C. Krull, Solicitor-General, Charles C. Olson, Assistant Solicitor-General, for appellee.

The record does not demonstrate a valid waiver by Thompson of the right to counsel. The hearing began with the following exchange:

THE COURT: This is in case number 14-SV-00563, the hearing on the contempt citation filed by this Court against Mr. Thompson. Mr. Krull, are you ready for the State?
MR. KRULL: Yes.
THE COURT: Mr. Thompson, are you going to be representing yourself in this matter?
MR. THOMPSON: I will. But I was coming down here with — I have in hand, as best I have, the documentation and evidence.
THE COURT: Okay. Mr. Krull, you may proceed.

Neither the court nor the state inquired into Thompson’s understanding of any of the factors regarding waiver of counsel. “The fact that [Thompson] is an attorney is . . . immaterial to a consideration of his right to the protection of the Sixth Amendment.” Because there is no evidence that Thompson waived his right to counsel, we reverse the trial court’s finding of contempt. Given our finding that the record does not demonstrate a valid waiver of counsel, we do not address whether the show-cause order was sufficient to put Thompson on notice of the charges against him.

2. Based on our conclusion in Division 1, supra, we also need not address whether the trial judge should have sua sponte recused himself or Thompson’s challenge to the sufficiency of the evidence.

Judgment reversed.

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

        Moton v. State, 332 Ga. App. 300 (772 SE2d 393) (2015) (punctuation and footnote omitted). See also In re Hadaway, 290 Ga. App. 453, 457 (659 SE2d 863) (2008).

        Moton, supra at 301 (punctuation and footnote omitted).

       OCGA § 15-1-4 (a) (1); Ramirez v. State, 279 Ga. 13, 14-15 (2) (608 SE2d 645) (2005); In re Otuonye, 279 Ga. App. 468, 469 (1) (631 SE2d 500) (2006).

        Moton, supra at 302 (punctuation and footnote omitted). See also Cooke v. United States, 267 U. S. 517, 537 (45 SCt 390, 69 LE 767) (1925).

        United Mine Workers v. Bagwell, 512 U. S. 821, 826-827 (II) (A) (114 SCt 2552, 129 LE2d 642) (1994); Young v. United States, 481 U. S. 787 (107 SCt 2124, 95 LE2d 740) (1987).

        Merritt v. State, 261 Ga. App. 597, 598 (583 SE2d 283) (2003). See also Argersinger v. Hamlin, 407 U. S. 25, 37 (92 SCt 2006, 32 LE2d 530) (1972) (“[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”) (footnote omitted).

        Merritt, supra (citations and punctuation omitted; emphasis in original).

       See Merritt, supra (reversing two-day jail sentence of a grand juror who only appeared for three of eighteen sessions and finding no valid waiver where the trial court told the grand juror that he could have an attorney but that he faced possible incarceration whether or not he had one).

        Glasser v. United States, 315 U. S. 60, 70 (62 SCt 457, 86 LE 680) (1942) (addingthat an attorney’s “professional experience may be a factor in determining whether he actually waived his right to the assistance of counsel. But it is by no means conclusive.” (citation omitted)), superseded by statute on other grounds as explained in Bourjaily v. United States, 483 U. S. 171, 181 (107 SCt 2775, 97 LE2d 144) (1987).


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A16A0976.
    SAGER v. IVY FALLS PLANTATION HOMEOWNERS’ ASSOCIATION, INC. et al.
    (793 SE2d 455)
   DOYLE, Chief Judge.

Cynthia Sager appeals from an order granting partial summary judgment to Ivy Falls Plantation Homeowners’Association, Inc. (the “New Association”), in her suit against the New Association seeking, in part, a judgment declaring that the New Association lacks authority to collect homeowners’ association fees from her. Sager contends that the trial court erred by ruling that the New Association is a continuation of the original homeowners’ association. F or the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that a residential developer began building the Ivy Falls Plantation subdivision, which eventually comprised 109 lots, and in March 1996, a principal for the developer incorporated the Ivy Falls Plantation Homeowners’Association, Inc. (the “Original Association”). From April 1996 to September 1997, the developer recorded covenants and amended covenants that granted a membership interest in the Original Association to each lot owner. The covenants authorized the Original Association to collect dues from lot owners and to perform certain other tasks on behalf of the subdivision. In July 2005, the Original Association was administratively dissolved by the Georgia Secretary of State.

In October 2006, two subdivision residents filed articles of incorporation for an entity, the New Association, sharing the same name as the Original Association, and the New Association began functioning in the place of the Original Association.

In July 2010, Sager purchased a home in the subdivision, and she later came to understand that she was considered a member of the New Association. According to an affidavit by Sager, shortly thereafter, a majority of the residents voted to dissolve the New Association, and until 2013, the New Association did not conduct business or collect dues.

In May 2014, the New Association sent Sager a notice of dues assessment requesting payment of $100 plus a $10 late fee. Sager disputed the authority of the New Association to require her to pay dues, and the New Association eventually filed a claim of lien on her property for the dues, which claim was later cancelled. Sager sued the New Association and its officers, filing a verified complaint asserting claims for declaratory judgment, injunctive relief, slander of title, usury, and a civil Georgia Racketeer Influenced and Corrupt Organizations Act violation. The defendants answered and filed counterclaims for declaratory judgment and money judgment for unpaid annual dues. All parties moved for partial summary judgment as to their claims for injunctive relief, seeking clarification on the authority of the New Association as successor to the Original Association. Following a hearing, the trial court ruled in favor of the defendants, holding that the New Association was the successor-in-interest to the Original Association based on its “continuity of interest.” Sager now appeals.

Sager argues that the trial court erred by holding that the New Association was essentially a successor to the old corporation as a matter of common law corporate continuity doctrine. We agree.

At the outset, we note that the parties do not dispute that the Original Association was administratively dissolved and not reinstated. Under OCGA § 14-3-1421 (c), “[a] corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs . . . Thus, the dissolved Original Association could not continue its normal business, and we confine our analysis to whether the New Association was, as the trial court ruled, effectively the successor-in-interest to the Original Association.

The trial court relied on what it termed the “continuity of interest test,” citing Floyd v. Springfield Plantation Property Owners’ Assn. and Rice v. Lost Mountain Homeowners Assn. In Floyd, a case decided in 2000, this Court addressed Floyd’s appeal from an order amending a 1992 judgment entered on a jury verdict awarding title to a shared water system to the Springfield Plantation Property Owners’ Association, Inc. (“SPPOA”). SPPOA’s claim to the water system was disputed by the original association, Springfield Plantation Homeowners’ Association, Inc. (“SPHA”), which had been dissolved two years prior to the incorporation of SPPOA. Seven years after the jury verdict, SPPOA obtained the amended judgment to clarify that it was the full successor-in-interest to SPHA and had authority to assess fees. Some of the homeowners appealed, and this Court affirmed, explaining as follows:

In order to reach its verdict [in favor of SPPOA], the jury must necessarily have found that SPPOA was the successor in interest to the prior homeowners’ association. The original suit sought clarification of who owned the Springfield Plantation water system — SPPOA, the developer, Floyd, or the individual property owners. To reach its verdict, the jury had to find that the developer transferred the water system to the original homeowners’ association. And the only way that SPPOA would then have any rights to the system was if the jury found that it was the successor in interest to the earlier association. The trial court’s recent amendment simply clarifies that result. It is not an improper modification or revision as no substantive rights are changed.

Thus, the question addressed by this Court was whether the amendment was an improper modification, and the Court was not required to examine the underlying legal theory or facts supporting the jury’s verdict in that case. The opinion recites some evidence presented at the hearing showing SPPOA’s active functioning since its incorporation, but the Court does not specifically address the merits or elements of any continuity-of-interest doctrine. As such, Floyd does not directly control the merits at issue in this case.

Next, in Rice, the Court addressed another case of competing homeowners’ associations. In 1989, the original developers of a subdivision created the Lost Mountain Homeowners Association (“LMHA”), which the Rices contended was only intended to govern the first phase of the development. A different association, the Lost Mountain Township Association (“LMTA”), had been created in 1987 to govern phases II and III, they argued, including their own home. In 1996, a majority of all lot owners in each of the three phases voted to designate the LMHA as the governing entity Nevertheless, in 2000, the Rices unilaterally created a rival association, the Lost Mountain Township Homeowners Association, Inc.

The Rices eventually disputed the authority of the LMHA to prevent them from constructing an 11-foot-high white vinyl fence that violated the restrictive covenants applicable to their lot. The LMHA sued and won, the Rices appealed, and this Court affirmed. The Court addressed the question “whether or not LMHA . . . had authority to govern the entire Lost Mountain Township subdivision consisting of all homes in [pjhases I, H, and III.” The Court answered in the affirmative:

[The fact that] there were other homeowner associations ceases to matter [because] the majority of the homeowners in the entire subdivision voted to have only one homeowners’ association govern the subdivision rather than to have multiple competing associations. The 1996 majority vote of all lot owners in the Lost Mountain Township subdivision was sufficient to have LMHA designated as the governing entity for the entire Lost Mountain Township subdivision, even if LMHA was originally to govern only [p]hase I.

Thus, the rationale in Rice was based on the majority vote of all of the members of the competing associations. Like Floyd, the analysis in Rice does not directly address the question of successor authority in the present case where there was no vote by a majority of the lot owners nor any act taken by the Original Association to transfer authority

Other cases examining the status of a purported successor have arisen when a new entity refuses to honor the debts or liabilities of a predecessor. A classic example is in the products liability context, when a new entity seeks to avoid liability for an injury caused by a product made by an alleged predecessor. In this context, Georgia courts have stated the rule as follows:

Generally, a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation.

“The latter of these circumstances refers to ‘the common law doctrine of corporate continuity[, which] applies where . . . there is a substantial identity of ownership and a complete identity of the objects, assets, shareholders, and directors.’The corporate continuity doctrine is one of equity.”

The Court applied this doctrine to a homeowners’ association in Dan J. Sheehan Co. u. The Fairlaum on Jones Condo. Assn. In that case, after a dispute arose about paying a contractor who did repair work for the association, the members of the original homeowners’ association voted at their annual meeting to amend the condominium declaration and bylaws to form a new association. During the pendency of litigation over the payment, a new association was incorporated, the board voted to cease operation of the old association, and the unit owners voted to adopt a restated condominium declaration that transferred responsibility for governing the condominium to the new association. When the new association argued that it was not liable for paying for the repair work procured by its predecessor, this Court held that the new association, which was different in name only, was a mere continuation of the old association.

Decided October 27, 2016.

Nathan E. Huff, for appellant.

Here, in contrast to each of the above-cited cases, there has been no transfer of any assets, no vote to incorporate the New Association, nor any other act taken by a majority of purported members with respect to the New Association. An affidavit from an incorporator of the New Association admits that the original board did not realize that a new entity had been created until this litigation. Consistent with this, the record contains no evidence that the New Association took any action to complete the organization process, elect new board members or officers, or adopt new bylaws regarding governance and dues collection authority. The only legal act reflected in the record is the mere filing of articles of incorporation of an entity with the same name. Thus, as in Rice, a competing association was formed, if only partially, but unlike in Rice, there was no participation by the membership or other authorized body in transferring any assets or governing authority to the New Association. Under the theory advanced by the New Association, anyone could file articles of incorporation for any entity at any time and, with nothing more, represent that it has governing authority over the subdivision. This is not what makes a competing association a successor under Georgia law, even under the doctrine of corporate continuity In each of the cases relied upon by the New Association, there was some corporate act — typically a vote by members or a transfer of assets or authority by the original entity — that gave the new entity authority and linked the new entity to the old. But merely filing articles of incorporation for a new entity and calling it the governing authority was not enough to create a legally enforceable successor interest in the New Association.

Therefore, as to the New Association’s authority as under the doctrine of corporate continuity, we reverse the grant of partial summary judgment to the New Association as well as the denial of partial summary judgment to Sager on this question.

Judgment reversed.

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

J. Patrick Claiborne, for appellees.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See generally OCGA § 14-3-1420 (grounds for administrative dissolution of a nonprofit corporation).

       See OCGA § 16-14-1 et seq.

       See generally OCGA § 14-3-1422 (a) (“A corporation administratively dissolved . . . may apply to the Secretary of State for reinstatement within five years after the effective date of such dissolution.”).

       The parties do not address, nor do we, whether the covenants, which are illegible in the appellate record, that encumber Sager’s deed somehow subject her to the authority of the New Association.

       245 Ga. App. 535 (538 SE2d 455) (2000).

       269 Ga. App. 351 (604 SE2d 215) (2004).

       See Floyd, 245 Ga. App. at 535.

       See id. at 535-536.

       Id. at 537 (4).

       See id. at 535-536.

       See Rice, 269 Ga. App. at 351.

       See id.

       See id.

       Id. at 352 (2) (a).

       (Emphasis supplied.) Id.

       (Emphasis supplied.) Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985).

       (Punctuation, footnote and emphasis omitted.) Dan J. Sheehan Co. v. The Fairlawn on Jones Condo. Assn., 334 Ga. App. 595, 597 (1) (780 SE2d 35) (2015).

       See id.

       See id. at 596.

       See id.

       See id. at 597 (1) (“[AJfter the [new association] was formed, it had the same purpose, same subject property, same board of directors, same officers, same voting members, same unit owners, same physical location, same registered office, and same authority to assess dues on the same people to pay for the same expenses. For practical purposes, nothing changed except the name of the association — the subject property did not change, the corporate composition did not change, the voting membership did not change, and the dues assessment capacity did not change.”) (footnote omitted).

       See generally OCGA § 14-3-205 (a) (2) (“After incorporation . . . the incorporator or incorporators shall hold an organizational meeting at the call of a majority of the incorporators: (A) To elect directors and complete the organization of the corporation', or (B) To elect a board of directors who shall complete the organ ization of the corporation.") (emphasis supplied).

       Again, we emphasize that our holding is limited to the rationale provided by the trial court, i.e., that it was a successor only by virtue of the corporate continuity doctrine, not by virtue of some other authority or document.


text:
    A16A1171.
    ORENGO v. THE STATE.
    (793 SE2d 466)
   DOYLE, Chief Judge.

Following a 2009 jury trial, Michael Orengo was convicted of rape, false imprisonment, sexual battery, and battery; he was acquitted of aggravated sodomy. The trial court granted his subsequent motion for new trial solely as to the rape conviction, and in 2012, he was retried for rape and convicted. Orengo appeals the denial of his motions for new trial as to all four charges. With regard to the 2009 trial, Orengo argues that the trial court erred by failing to sua sponte charge the jury on consent and by admitting testimony from a particular State witness not disclosed during discovery He also alleges that trial counsel was ineffective by failing to: request a jury charge on consent; request a continuance or to cross-examine a particular State witness; or object to testimony regarding the victim’s sexual orientation and activity, which testimony violated Georgia’s Rape Shield Statute. With regard to his rape conviction resulting from the 2012 trial, Orengo argues that the trial court erred by permitting the State to shift the burden of proof by arguing during closing statements; admitting the testimony of a particular State witness; failing to direct a verdict of acquittal because the State failed to prove venue; trying him for rape in violation of his double jeopardy rights; and admitting testimony regarding the victim’s sexual orientation and activity in violation of Georgia’s Rape Shield Statute. He also argues that trial counsel was ineffective by failing to move for a directed verdict of acquittal based on the State’s failure to prove venue or to file a double jeopardy plea in bar. 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, with the defendant no longer enjoying a presumption of innocence.” We do not “weigh the evidence [or] judge the credibility of witnesses, but determine only whether ... a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence introduced during the 2009 trial shows that Orengo, a mortgage broker, assisted D. H. in the sale of her Henry County home. Because D. H. was deaf, she and Orengo effectively communicated by passing written notes or by relay text messaging. After meeting several times to discuss the sale of her home, D. H. went to Orengo’s office for a meeting on Saturday, February 16,2008. Orengo asked D. H. to wear a dress to the meeting, but she declined.

Orengo met D. H. in the parking lot and led her to his office where they met for approximately 20 minutes. Orengo then gave D. H. a note that she did not understand, and she walked over to him for clarification. According to D. H., Orengo then began touching her shoulder, “rub[bing]” and “groping” her, and she “pulled his arm off of [her]Orengo then began “fondling” her, and she told him she “didn’t want that,” told him to “get off of [her],” and “pushed him away, but he continued.” Orengo then forced her down from behind, groping her breasts and pulling her down from the neck. While twisting D. H.’s hand behind her back, Orengo then pulled down her pants and inserted his penis into her rectum. After showing her that the door to his office was locked, Orengo then pushed D. H. to the floor, forcibly penetrated her vaginally with his penis, and then ejaculated on her stomach. Afterward, D. H. was very upset, and Orengo said, “I don’t want to hurt you.” D. H. cleaned herself up in the restroom, pushed Orengo away when he continued to rub her shoulder as she gathered her paperwork, and left the office.

D. H., who later described herself as “in such, such shock” and unable to “think straight,” then went to the office of Kim Bashir, her real estate agent. D. H. and Bashir met for approximately four hours, and then D. H. went home. D. H. testified that she did not tell Bashir what Orengo had done because she believed that Bashir and Orengo were good friends. After crying all night, D. H. disclosed the assault to a friend the following morning, and he encouraged her to tell the police. D. H. went to church and disclosed the assault to church officials, who called the police and instructed her to go to the hospital. Medical personnel conducted a rape examination, and D. H. was interviewed by police and gave them the clothing she was wearing during her encounter with Orengo the preceding day.

At the April 2009 trial, the State introduced photographs depicting bruises on D. H.’s arms. A State crime lab employee testified that serology testing on vaginal/cervical smears taken from D. H. during her rape examination at the hospital revealed the presence of spermatozoa, but they were unable to identify a DNA profile other than that of D. H. The employee also testified that although it had a sample of Orengo’s DNA, the lab was not asked to analyze D. H.’s clothing for the presence of Orengo’s DNA. The State also played for the jury Orengo’s videotaped statement; Orengo admitted during cross-examination that in the videotape he repeatedly denied physical contact with D. H.

Orengo testified in his own defense, explaining that during one of their meetings, he gave D. H. a note asking her if she “had ever done it with a Puerto Rican,” and she smiled in response. Orengo believed that D. H. “knew [he] was flirting” and “was receptive.” According to Orengo, during the February 16, 2008 meeting, he “accidentally brushed up on [D. H.]. And the next thing you know it, we were engaged. And we just started having sex. . . Orengo denied that D. H. communicated to him in any way that she did not want to engage in sexual relations with him. He denied anally penetrating, striking, hitting, or choking D. H. during the encounter, but testified that they “were grabbing each other.” Orengo conceded that he lied to police regarding whether he had sexual intercourse with D. H., but testified he did so because he did not want his wife or children to find out that he had engaged in extramarital relations.

The jury found Orengo not guilty of aggravated sodomy and guilty of rape, false imprisonment, sexual battery, and battery Orengo moved for anew trial, andón February 8,2012, the trial court granted a new trial as to the rape charge, but denied the motion as to false imprisonment, sexual battery, and battery.

On October 9, 2012, the new trial as to the rape charge began. The State’s evidence was similar to that introduced at the original trial. Orengo, however, did not testify at the second trial. At the conclusion of the evidence, the jury found Orengo guilty of rape.

Orengo filed a motion for new trial as to his rape conviction, and the trial court denied the motion. On May 18, 2015, the trial court entered a consent order permitting Orengo to file an out-of-time appeal of his conviction for false imprisonment, sexual battery, and battery resulting from the initial trial. This appeal of the convictions from both trials followed.

1. As an initial matter, we note that in his lengthy brief on appeal, Orengo, on more than one occasion, challenges errors and alleges instances of ineffective assistance of counsel in both the 2009 trial and the 2012 trial in the same enumeration of error. This practice violates our appellate rules and complicates our review. Nevertheless, as is our obligation, we will review those claims of error to the extent we can ascertain his arguments.

2009 Conviction for False Imprisonment, Sexual Battery, and, Battery

Orengo asserts the following enumerations of error with regard to his first trial.

2. Orengo contends that the trial court erred when it failed to sua sponte charge the jury on consent, his sole defense at trial. We disagree.

Orengo did not request a jury instruction on consent.

If an affirmative defense is raised by the evidence, including the [defendant’s] own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, need not be specifically charged if the case as a whole is presented to the jury. In a case involving charges of rape and aggravated sodomy, the effect of a consent defense is simply to traverse the [S]tate’s proof. Thus, the failure to specifically charge on consent as a sole defense to an extrinsic offense, absent a request for such charge, was not reversible error.

3. Orengo asserts that the trial court erredby admitting the testimony of expert witness Anique Whitmore. We find no reversible error.

After the defense rested, the State called Whitmore as a rebuttal witness. Over Orengo’s objection, the trial court qualified her as “an expert therapist trained in sexual victimization,” and Whitmore testified regarding disclosure patterns by sexual assault victims, including reasons for disclosure delay, particularly where the victim is familiar with the assailant or has “special needs,” including hearing impairment.

Orengo argues that the trial court erred by admitting Whit-more’s testimony First, Orengo contends that the State failed to identify her as a witness during discovery, and instead, improperly admitted her testimony as rebuttal evidence. According to Orengo, the State clearly anticipated the need for her testimony, given D. H.’s delay in reporting the assault, and elected to present it as rebuttal evidence to ambush the defense. But although Orengo objected to the admission of Whitmore’s testimony, he never asserted this particular basis — that it was not in fact rebuttal evidence — for his objection.

It is the rule in Georgia that objections should be made with sufficient specificity for the trial court to identify the precise basis. It is not important in what format the allegation is cast so long as it is clear to the court the specific error alleged that the court may have the opportunity to correct them. . . . On appeal only issues properly raised before the trial court will be considered.

Here, because Orengo’s objection was insufficient to notify the trial court that his objection to Whitmore’s testimony was that it was not proper rebuttal evidence, Orengo has waived this argument on appeal.

Orengo also contends that Whitmore’s testimony was inadmissible because it constituted “improper bolstering.” Again, Orengo did not specify this as the basis for his objection at trial, and it is not clear that the trial court ruled on such an argument. Accordingly, for the same reason, we conclude that Orengo waived this argument on appeal.

4. Orengo argues that the trial court erred by admitting evidence over his objection regarding D. H.’s sexual orientation and activity in violation of the Rape Shield Statute. Orengo did not, however, provide a citation to the record to support this contention, and our review did not reveal the introduction of such evidence during D. H.’s testimony.

Court of Appeals Rule 25 (c) (2) (i) provides: “Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” “Indeed, it is not the function of this Court to cull the record on behalf of a party; the burden is upon the party asserting error to show it affirmatively in the record.” Accordingly, under these circumstances, Orengo has abandoned this enumeration of error.

5. Orengo further alleges that he received ineffective assistance of counsel. To establish these claims,

[Orengo] must show that (1) his trial counsel’s performance was professionally deficient and (2) but for such deficient performance there is a reasonable probability that the result of the trial would have been different. On appeal, this Court accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.

(a) Orengo contends that trial counsel was ineffective by failing to cross-examine Whitmore or to request a continuance so that she could procure a defense expert to counter Whitmore’s testimony. We find no basis for reversal.

Decisions regarding

how to deal with the presentation of an expert witness by the opposing side, including whether to present counter expert testimony, to rely upon cross-examination, to forego cross-examination and/or to forego development of certain expert opinion, is a matter of trial strategy which, if reasonable, cannot be the basis for a successful ineffective assistance of counsel claim.

Orengo has not established that trial counsel’s decisions not to introduce expert testimony to rebut that of Whitmore or not to cross-examine her were unreasonable. Thus, the trial court did not err by rejecting this ineffective assistance of counsel claim.

(b) Orengo argues that trial counsel was ineffective by failing to request a jury instruction on consent.

Decisions as to which charges will be requested and when they will be requested fall within the realm of trial tactics and strategy[ ] and provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.

Here, notwithstanding the trial court’s failure to specifically charge the jury regarding consent, it did instruct that in order to prove sexual battery, the State was required to prove that Orengo made physical contact with D. H.’s breasts without her consent and that to prove false imprisonment, the State had to establish that Orengo detained D. H. without legal authority The court also charged the jury on intent and instructed that the State had to prove each element of the crimes beyond a reasonable doubt. Finally, the trial court charged the jury that “a person shall not be guilty of a crime if the act or omission to act constituting the crime was induced by misapprehension of fact[,] which if true would have justified the act or omission.” Given these charges, trial counsel’s failure to request a jury charge on consent “was reasonable and provides no basis for a reversal of [Orengo’s] conviction.” Moreover, Orengo has failed to show that the outcome of the trial was affected by counsel’s failure to request a consent charge.

2012 Conviction for Rape

The following enumerations refer to alleged reversible error occurring during the second trial, which took place during 2012.

6. Orengo argues that the trial court erred by permitting the State to shift the burden of proof by arguing during closing that Orengo should have performed DNA testing of D. H.’s clothing and admitted the results at trial.

On appeal, Orengo points to the following statements of the prosecutor during closing argument:

[Jjust like [the defense] brought [expert witness] Dr. Loring in here, they could have found out ... if the defendant’s DNA was on those jeans. Let’s be clear, we should have gotten the jeans tested. She is absolutely correct about that. But if you really want to know whose DNA it is, you’re really saying I didn’t rape this woman; my DNA is not going to be on those jeans. Why not? Why are [sic] you getting expert witnesses. . . . Why not test it? Because that’s not in their interest.

Trial counsel objected on the basis that the argument constituted burden shifting, but was overruled. The State went on to argue that “[w]e want to talk about DNA because we live in the age of‘Forensic Files’ and ‘CSI,’ and DNA proves and solves everything.” The prosecutor then stated, “[L]et’s just say, hypothetically, that we got these jeans tested[,] and the defendant’s DNA was on it, what do you think would have happened?” Trial counsel again objected, but was overruled.

Orengo fails to point out, however, that defense counsel raised this issue during her closing, before the prosecutor gave his closing statement. Defense counsel argued: “Did the State prove to you beyond a reasonable doubt that the sperm that they found from [D. H.] belonged to [Orengo]? . . . Could they have? Yeah, they could have. They could have.” She also argued: “Today[,] we don’t have to rely on he said versus she said because we’ve got scientific ways of establishing... whether or not what is said is true and that scientists, independent of any of us, can bring into this court.”

The prosecutor then conceded that “there is no DNA. You can’t say with scientific certainty that the semen that was found in the victim’s vagina belonged to this defendant.” After pointing out the other evidence of Orengo’s guilt, the prosecutor then advised the jury that “[the State has] the burden of proving this case beyond a reasonable doubt. That burden never, ever shifts to the defendant,” before pointing out Orengo’s failure to have the jeans tested.

“A prosecutor may argue that the defendant has not rebutted or explained the State’s evidence. It is also permissible for a prosecutor, in closing argument, to urge the jury to draw reasonable deductions from a defendant’s failure to produce purportedly favorable witnesses.” Here, the prosecutor’s comments were made immediately after defense counsel’s comments regarding the State’s failure to conduct DNA testing of the victim’s clothing. And the prosecutor contemporaneously emphasized that the State bore the burden of proof and that it never shifted to the defense, which was reiterated by the trial court when it instructed the jury. Under these circumstances, we find no basis for reversal.

7. Orengo argues that the trial court erred by admitting Whit-more’s expert testimony

Before the second trial began, defense counsel made a pretrial motion to exclude Whitmore’s testimony on the basis that it was improper for her to testify as an expert because she was an employee of the district attorney’s office and had failed to investigate the case. The trial court overruled the objection, noting that Whitmore’s “livelihood, the sorts of her livelihood, and where she is employed are all issues which would go to the weight of her testimony as opposed to its admissibility and certainly may be explored by the defense if she’s called.” At trial, after Whitmore explained her education and employment as a therapist and in the district attorney’s office as the director of forensic services, which involved interacting and working with victims of sexual assault, she was qualified as an expert in “counseling victims of sexual assault” without objection by Orengo.

Whitmore then testified about differences in reporting crimes and in responding to sexual assault by victims, particularly delays in disclosure by deaf victims. During cross-examination, Whitmore conceded that she had never spoken with D. H. nor did she have any personal knowledge from interviewing or assessing witnesses involved in this case.

On appeal, Orengo argues that Whitmore’s testimony should have been excluded as improper bolstering evidence, particularly in light of her failure to observe D. H. We find no abuse of discretion.

A decision as to whether a witness possesses such learning or experience to qualify as an expert witness lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused. An expert is one whose habits and profession endow that person with the particular skill needed in forming an opinion on the subject matter at inquiry.

“Improper bolstering occurs when an expert witness is allowed to give . . . her opinion as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror.”

Here, Whitmore testified based on her experience interviewing and counseling victims of sexual assault regarding victims’ demeanor after an assault and possible disclosure delays. “That was in no way a comment on an ultimate issue of fact. And the court was authorized to find that the conclusion drawn by the expert was beyond the ken of the jurors.” And we previously have affirmed the admission of expert testimony regarding the post-event conduct of rape and sexual assault victims, including disclosure delay. Given Orengo’s argument at trial that D. H.’s behavior after the alleged incident, including her delay in reporting it, supported the conclusion that she fabricated the allegations, we find no abuse of discretion in admitting Whitmore’s testimony. And because Orengo failed to object to Whitmore’s qualifications as an expert, he has waived any objection to such. Pretermitting his waiver, Orengo’s arguments regarding her employment in the prosecutor’s office as well as her failure to investigate this go to the weight and credibility of her testimony and provide no basis for reversal.

8. Next, Orengo contends that the trial court erred by failing to sua sponte direct a verdict after the State failed to prove venue. “[Because Orengo] made no motion for a directed verdict of acquittal, the trial court did not err by failing to direct a verdict sua sponte.”

9. Orengo further argues that because he was convicted on the lesser included offenses of battery and sexual battery following his first trial in 2009, double jeopardy precluded his 2012 trial for rape.

Retrial of a defendant is not barred if post-conviction proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict. Where the defendant secures a new trial based on the commission of reversible error at a prior trial, the plea of double jeopardy is waived.

Here, the evidence admitted at the first trial, including D. H.’s testimony, photographs of her bruises, and the discovery of sperm on vaginal swabs taken from D. H. the day following the assault, was sufficient to support Orengo’s conviction for rape. Accordingly, this enumeration is without merit.

10. Orengo contends that the trial court erred by admitting evidence regarding D. H.’s recent sexual activity in violation of the Rape Shield Statute. We discern no basis for reversal.

During direct examination, the prosecutor asked D. H.: “Around the time of the rape, of the assault that Saturday, had you had sex with anybody —Defense counsel objected that the question violated the Rape Shield Statute, and the trial court overruled the objection. The prosecutor then asked whether D. H. “had sex with anyone” within a few days of the assault, and D. H. replied, “No.”

The [Rjape [Sjhield [Statute] excludes evidence of past sexual behavior of the alleged victim of a rape or other sex crime. It is intended to protect the complaining witness from intrusive inquiries into her history of sexual activity with persons other than the defendant, inquiries which could only be intended to support the inference that the victim consented to intercourse with the defendant. Exceptions to the law have been made, however, when evidence of the victim’s sexual activity is relevant to an issue other than consent.

Here, D. H.’s testimony about her sexual activity in the few days around the alleged rape was relevant to exclude the possibility that the sperm found on swabs of her vagina the day after the rape belonged to someone other than Orengo. And, “the Rape Shield [S]tatute . . . cannot be invoked by a defendant to prevent a victim from offering otherwise relevant evidence.” “Under these circumstances, the trial court did not abuse its discretion in admitting the victim’s testimony.”

11. Finally, Orengo contends that trial counsel was ineffective during the second trial.

(a) Orengo argues that counsel was ineffective by failing to move for a directed verdict on the issue of venue. “[Orengo] does not claim that venue was, in fact, improper, but instead asserts that the State did not properly establish venue.”

D. H. testified that the rape occurred in Orengo’s office. According to the police officer who took D. H.’s initial report, D. H. told him that she had been at “a meeting at a mortgage office on Old National Highway with... Orengo,” and the location D. H. described was on the 5300 block of “Old National Highway,” which was located in Fulton County Another officer testified that D. H. told him that Orengo sexually assaulted her at his office, which the officer determined was located in Fulton County This evidence provided sufficient proof of venue. “Thus, [Orengo] cannot show that the outcome of his trial on these two charges would have been different had trial counsel moved for a directed verdict.”

Decided October 27, 2016.

James S. Lewis, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

(b) Orengo argues that counsel was ineffective by failing to pursue a plea in bar on double jeopardy grounds. As we held in Division 9, double jeopardy did not preclude Orengo’s retrial for rape. And the failure to raise a meritless double jeopardy claim does not constitute ineffective assistance of counsel.

Judgment affirmed.

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

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-5-41 (a).

       OCGA § 16-6-22.1 (b).

       OCGA § 16-5-23.1 (a).

       The trial court entered a consent order permitting Orengo to pursue an out-of-time appeal of his conviction from the 2009 trial along with his rape conviction from the 2012 trial.

        Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004).

       (Punctuation omitted.) Owens v. State, 334 Ga. App. 203 (778 SE2d 830) (2015).

       The appellate record contains a photocopy of the DVD of Orengo’s videotaped statement; the DVD was not included in the record. We note that Court of Appeals Rule 18 (b) provides:
      When the notice of appeal directs that transcripts of a trial or a hearing be included in the record, copies of all video or audio recordings that were introduced into evidence shall be transmitted to this Court along with the trial or hearing transcript. It shall be the responsibility of the party tendering the recordings at a trial or a hearing to ensure that a copy of the recording is included in the trial court record; however, it is the burden of the appealing party to ensure that a complete record is transmitted to this Court on appeal, including the transmission of video or audio recordings. If a transcript of a trial or a hearing is designated as part of the appellate record, the clerk of the trial court shall then include the copy of the recording in the appellate record transmitted to this Court. If a copy of a recording played at a trial or a hearing is not included with the transcript designated to be transmitted in the appellate record, this Court may take whatever action is necessary in order to ensure completion of the record, including, but not limited to, issuing a show-cause order requiring an explanation of its absence. The appellant’s failure to complete the record may also result in this Court declining to consider enumerations of error related to the missing evidence. Copies of any video or audio recordings of evidence shall be submitted to this Court on DVD or on video or audio compact disc, and shall include any proprietary software necessary to play the recordings.
      Although this Court ultimately obtained a copy of the DVD from the trial court, we note that the burden remains on the appellant to perfect the record on appeal. Because this is a recurring problem, we also remind the trial court clerks that they should not send us photocopies of a DVD, but instead remit an actual reviewable DVD.

       At a July 20, 2012 hearing, trial counsel inquired regarding the basis for the trial court’s ruling on Orengo’s motion for new trial, and the trial court responded, “[djuring the course of [the] trial, this court charged the jury on the offense of rape and did not charge as to the charge on consent....” The trial court, however, did not explain the basis for its ruling in the February 8, 2012 written order on the motion for new trial.

       We note relevant differences in the evidence as we analyze each of Orengo’s enumerations of error.

       See OCGA § 5-6-40 (“The appellant and cross appellant shall file with the clerk of the appellate court... an enumeration of the errors which shall set out separately each error relied upon.”).

       See OCGA § 5-6-48 (f) (“Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.”).

       (Citation and punctuation omitted.) Felker v. State, 252 Ga. 351, 363 (1) (c) (314 SE2d 621) (1984). See also Lamar v. State, 243 Ga. 401, 403 (6) (254 SE2d 353) (1979) (“The element of force negates any possible mistake as to consent.”); Jenkins v. State, 180 Ga. App. 245, 246 (1) (348 SE2d 905) (1986).

       After the State tendered Whitmore as an expert, the trial court inquired whether there was any objection, and defense counsel replied, “Yes,” without specifying the basis therefor; he did, however, request to voir dire the witness as to her qualifications and credentials. After he concluded voir dire, defense counsel advised the trial court that he “[stood] on the objection,” again without specifying the basis for the objection. At no time did Orengo argue to the trial court that Whitmore was not a true rebuttal witness.

       (Citation and punctuation omitted.) Sharpe v. Dept. of Transp., 270 Ga. 101, 102-103 (505 SE2d 473) (1998).

       See id. at 103. See also Altman v. State, 229 Ga. App. 769, 770 (2) (495 SE2d 106) (1997).

        See Altman, 229 Ga. App. at 770 (2).

       Orengo contends in the argument portion of his brief that trial counsel was ineffective by failing to object to and move for a mistrial after each instance in which the State admitted evidence or presented argument in violation of the Rape Shield Statute. Orengo’s enumeration regarding evidence and argument presented in violation of the statute, however, alleges only that the trial court erred; it does not allege ineffective assistance of counsel in this regard. Thus, “this argument falls outside the enumerated error and will not be considered.” Kohlhaas v. State, 284 Ga. App. 79, 85 (3), n. 4 (643 SE2d 350) (2007).

       We note that the record in this case consists of 19 volumes.

        Williams v. Resurgens and Affiliated Orthopaedists, 267 Ga.App. 578, 579 (1) (600 SE2d 378) (2004).

       (Citations and punctuation omitted.) Adams v. State, 298 Ga. 371, 372-373 (2) (782 SE2d 36) (2016), citing Strickland v. Washington, 466 U. S. 668, 687 (II), 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984).

        Thomas v. State, 284 Ga. 647, 650 (3) (b) (670 SE2d 421) (2008).

        See Brown v. State, 292 Ga. 454, 457 (2) (738 SE2d 591) (2013); Phillips v. State, 285 Ga. 213, 223 (5) (i) (675 SE2d 1) (2009); Oliver v. State, 324 Ga. App. 53, 57-58 (2) (748 SE2d 510) (2013).

       (Punctuation omitted.) Jackson v. State, 278 Ga. 235, 239 (5) (a) (599 SE2d 129) (2004).

        Goldey v. State, 289 Ga. App. 198, 202 (2) (g) (656 SE2d 549) (2008).

       See id.

       Again, Orengo did not testify at the second trial.

       (Citations and punctuation omitted.) Arrington v. State, 286 Ga. 335, 346 (16) (c) (687 SE2d 438) (2009).

       See id.; Miller v. State, 275 Ga. 730, 739 (7) (571 SE2d 788) (2002).

       (Citation omitted.) Griffin v. State, 243 Ga. App. 282, 286 (5) (531 SE2d 175) (2000).

        Maddox v. State, 275 Ga. App. 869, 871 (2) (622 SE2d 80) (2005).

       Id.

       See Stevenson v. State, 272 Ga. App. 335, 338-339 (2) (612 SE2d 521) (2005); Thomas v. State, 239 Ga.App. 460, 462-463 (3) (521 SE2d 397) (1999). See also McCoy v. State, 278 Ga.App. 492, 493 (3) (629 SE2d 493) (2006) (noting that “Georgia courts ... have long allowed testimony regarding child sexual abuse syndrome”).

        See Maddox, 275 Ga.App. at 871 (2); Stevenson, 272 Ga.App. at 338-339 (2).

       See Reynolds v. State, 200 Ga. App. 43, 44 (2) (406 SE2d 553) (1991).

       See Taylor v. State, 337 Ga.App. 486, 499 (4) (c) (788 SE2d 97) (2016) (“[The defendant’s] challenges to [a witness’s] expert opinion based on a lack of personal knowledge and insufficient investigation go to the weight and credibility, not admissibility, of the testimony.”); Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 749 (5) (542 SE2d 151) (2000) (“The fact that [the witness] was a party to the case simply goes to the weight and credibility of his expert testimony, not to his qualifications as an expert.”).

        Bryson v. State, 316 Ga.App. 512, 518 (4) (729 SE2d 631) (2012), citing McCord v. State, 182 Ga. App. 586 (1) (356 SE2d 689) (1987).

       (Citation and punctuation omitted.) Howard v. State, 200 Ga. App. 188, 191 (6) (407 SE2d 769) (1991), quoting OCGA § 16-1-8 (d) (2).

       See Glaze v. State, 317 Ga.App. 679, 681-682 (1) (732 SE2d 771) (2012).

       Again, Orengo did not allege ineffective assistance of counsel in his enumeration regarding violation of the Rape Shield Statute. Thus, to the extent that Orengo argues that trial counsel was ineffective for failing to object to and move for mistrial after each admission of evidence and argument that he alleges violated the Rape Shield Statute, that argument fails for the same reason set forth in Division 4, note 18.

       Former OCGA § 24-2-3. Under Georgia’s new Evidence Code, which was effective January 1, 2013, the Rape Shield Statute is codified at OCGA § 24-4-412.

       (Punctuation and footnotes omitted.) Warner v. State, 277 Ga.App. 421, 423-424 (2) (626 SE2d 620) (2006).

        Demetrios v. State, 246 Ga. App. 506, 514 (7) (c) (541 SE2d 83) (2000).

        Warner, 277 Ga. App. at 424 (2) (Evidence regarding rape victim’s sexual history “was relevant to exclude the possibility that someone other than [the defendant] had sexual contact with her and gave her herpes. It was not introduced to bolster the victim’s character or show consent.”).

        Hinkle v. State, 282 Ga. App. 328, 330 (3) (638 SE2d 781) (2006).

        See Duvall v. State, 273 Ga. App. 143, 144 (1) (b) (614 SE2d 234) (2005). See also Bentley v. State, 314 Ga. App. 599, 600 (1) (724 SE2d 890) (2012) (“Where the victim testifies where the crime took place, and an officer identifies that location as being within a certain county, the officer’s testimony is not hearsay.”) (punctuation omitted), quoting Bravo v. State, 269 Ga. App. 242, 245 (2) (603 SE2d 669) (2004). In the absence of any evidence of any inaccuracy or motive to mislead or distort by the interpreter, we reject Orengo’s contention that because the police officers communicated with D. H. through a sign language interpreter, their testimony about her statements to them constituted inadmissible hearsay. Cf. Lopez v. State, 281 Ga. App. 623, 625 (1) (636 SE2d 770) (2006) (“Under the so-called ‘language conduit’ rule, absent a motive to mislead, distort or some other indication of inaccuracy, when persons speaking different languages rely upon a translator as a conduit for their communication, the statements of the translator should be regarded as the statements of the persons themselves without creating an additional layer of hearsay.”) (punctuation omitted). See Davis v. State, 214 Ga. App. 360 (1) (448 SE2d 26) (1994) (for purposes of child hearsay statute, “[ajnswers communicated through an interpreter [for the deaf child victim] are made to the person asking the question, despite the existence of an interpreter.”).

        Hinkle, 282 Ga. App. at 330 (3).

       See, e.g., Southwell v. State, 320 Ga. App. 763, 765 (2) (740 SE2d 725) (2013).


text:
    A16A1225.
    McGIL v. THE STATE.
    (793 SE2d 442)
   DOYLE, Chief Judge.

After a jury trial, Johntavious McGil was convicted of aggravated assault, armed robbery, theft by taking, and possession of a weapon during the commission of a crime. McGil filed a motion for new trial (later amended), which the trial court denied. McGil appeals, arguing that (1) there was insufficient evidence to support the verdict; (2) the trial court erred by permitting the State to introduce bad character evidence; (3) the verdict was against the great weight of evidence; and (4) he received ineffective assistance by counsel’s failure (a) to present an alibi witness and (b) to call McGil to testify in his own defense. Although the evidence was sufficient, McGil failed to establish ineffective assistance of counsel, and no bad character evidence was admitted, the trial court nevertheless failed to exercise its discretion and weigh the evidence under the general grounds. Accordingly, we vacate the denial of McGil’s motion for new trial and remand the case for further proceedings that are consistent with this opinion.

Viewed in the light most favorable to the verdict, the evidence shows that on July 1, 2014, the victim was parked at a convenience store and was approached by McGil (the victim’s former co-worker whom he knew as “Tay”). McGil came to the window of the victim’s car, said hello, and told the victim he would give him his phone number, but as the victim took out his phone to take down the number, McGil said “give me your phone.” The victim thought at first McGil was joking because they knew each other, but when he looked up, McGil was pointing a .38 caliber revolver at him. The victim gave McGil the phone, and at McGil’s insistence, provided the password; McGil told the victim not to follow him, and he fled in a silver sedan driven by another individual.

While investigating the crime, police prepared three photographic lineups; the first on July 1, 2014, the second on July 9, 2014, and the third on July 16, 2014 — the last being the only lineup to contain McGil’s photograph. The victim did not make a positive identification of the perpetrator until police presented him with the third lineup, at which point he identified McGil. The victim also identified McGil in court and was very positive of his identification. The victim denied having had a grudge against McGil.

The jury returned a guilty verdict as to all the charges, and the trial court merged the aggravated assault and theft by taking charges with the armed robbery charge and sentenced McGil to twenty years to serve eleven in incarceration with the remainder on probation followed by a five-year consecutive sentence of probation for the weapons charge.

1. McGil argues that there was insufficient evidence to support the verdict. Nevertheless, the facts, as stated above, were sufficient to establish that McGil approached the victim in the parking lot, and after a brief discussion, robbed him at gunpoint. To the extent that there were inconsistencies between the victim’s statements to the police and at trial or that the victim’s actions after the incident were suspicious, those issues were for the jury to determine. Accordingly, this enumeration is without merit.

2. Next, McGil contends that the trial court erred by allowing bad character evidence of his alleged gang membership.

During a discussion between the State, the trial court, and the defense, a State witness explained that McGil’s driver’s license picture was acquired for the photographic lineup by searching a database of gang investigations for the name “Tay,” which resulted in the discovery of “Parkway Tay” — a nickname for McGil. The victim later viewed the lineup and identified McGil as the perpetrator. McGil contends that the introduction of the connection to the gang database was bad character evidence, irrelevant to the proceedings. McGil acknowledges that the evidence was not presented to the jury, but he contends that it prejudiced the trial court to sentence him more harshly based on this evidence instead of sentencing him to the ten-year-to-serve sentence offered by the State for a negotiated guilty plea.

The sentencing hearing, however, shows that the trial court sentenced McGil to 11 years to serve based on the nature of the crime and the court’s determination that McGil should have a lengthy probation. The sentence was only one year of incarceration longer than the negotiated plea offered prior to trial, but four fewer years of incarceration than the State’s recommendation at the sentencing hearing. At the motion for new trial hearing, the trial court determined that McGil’s alleged gang membership did not affect sentencing, and the court noted that it had sentenced McGil to only one year of incarceration over the mandatory minimum. Accordingly, this enumeration is without error.

3. McGil contends that he received ineffective assistance of counsel.

To prevail on his claim of ineffective assistance, [the defendant] must prove both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for that deficiency, there is a reasonable probability that the outcome of the trial would have been different,. We need not analyze both prongs if [the defendant] fails to satisfy either one. When reviewing a trial court’s ruling on a claim of ineffective assistance, we uphold the court’s factual findings unless they are clearly erroneous and review its legal conclusions de novo.

(a) McGil first contends that his counsel was ineffective because he failed to present an alibi witness. At the motion for new trial hearing, trial counsel testified that although the purported witness was present at the trial, she did not tell counsel that McGil was with her during the time of the robbery Additionally, she admitted that trial counsel questioned her about the robbery, but she told him that she did not know anything about it. Based on this information, the trial court did not err by finding the purported alibi witness lacked credibility and by determining based thereon that trial counsel was not deficient for making the strategic decision not to have her testify at trial.

(b) McGil contends that his counsel was ineffective because he failed to allow McGil to testify in his own defense. This contention is belied by the record, however, because the trial transcript shows that McGil told the trial court the decision not to testify at trial was his decision alone, a sentiment to which he also testified at the hearing on the motion for new trial.

Therefore, the record shows that, not only did counsel’s testimony support the trial court’s ruling on the motion for new trial, but [McGil] did not produce evidence as to what he should have known at the time of his decision about whether to testify that he did not, nor how that information would have altered his decision.

Accordingly, McGil has failed to establish that he received ineffective assistance of counsel.

4. Finally, McGil maintains that the verdict was against the great weight of evidence and contrary to the principles of equity and justice. Specifically, he contends that there was no independent evidence of the robbery aside from the testimony of the victim, who acted suspiciously by failing to contact the police at the scene of the crime.

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is contrary to the principles of justice and equity, or if the verdict is decidedly and strongly against the weight of the evidence. When properly raised in a timely motion, these grounds for a new trial — commonly known as the general grounds — require the trial judge to exercise a broad discretion to sit as a thirteenth juror. In exercising that discretion, the trial judge must consider some of the things that [he] cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict, — it nevertheless is, generally speaking, a substantial discretion.

Decided October 27, 2016.

Viveca R. Famber Powell, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

At the hearing on the motion for new trial, the trial court stated that this enumeration “is the same as number one, insufficient evidence. I find that there was.” With regard to the trial court’s analysis of insufficient evidence, however, the trial court rightly found that credibility questions were for the jury. This is a “legal determination that the evidence was sufficient under the standards of Jackson u. Virginia.” Although the court’s colloquy denying the motion for new trial was thorough as to all other aspects of the motion, there simply is no evidence that the trial court “exercised discretion, weighed the evidence, and determined as the ‘thirteenth juror’ whether the verdict was against the great weight of the evidence or offended the principles of justice and equity.” To the contrary, the record shows that the trial court simply reapplied the Jackson standard. “Accordingly, we vacate the judgment and remand this case to the trial court for consideration of the motion for new trial under the appropriate discretionary standard.”

Judgment vacated and case remanded with direction.

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

       OCGA § 16-5-21 (b) (1).

       OCGA § 16-8-41 (a).

       OCGA § 16-8-2.

       OCGA § 16-11-106 (b) (1).

       See Souder v. State, 301 Ga. App. 348 (687 SE2d 594) (2009).

       See, e.g., id. at 351-352 (3).

       McGil turned down the plea deal and instead went to trial.

       (Citations omitted.) Traylor v. State, 332 Ga. App. 441, 447 (3) (773 SE2d 403) (2015).

       See Ransom v. State, 297 Ga. App. 902, 906-907 (2) (a) (678 SE2d 574) (2009).

       (Punctuation omitted.) Jacobs v. State, 299 Ga. App. 368, 373 (2) (b) (683 SE2d 64) (2009).

       (Citations and punctuation omitted; emphasis supplied.) White v. State, 293 Ga. 523, 524-525 (2) (753 SE2d 115) (2013).

        Wiggins v. State, 330 Ga.App. 205, 211 (c) (767 SE2d 798) (2014). See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        Wiggins, 330 Ga. App. at 211 (c).

       Id. Compare with Souder, 301 Ga. App. at 352 (3).


author: Ray, Judge.

text:
    A16A1336.
    FITZPATRICK v. THE STATE.
    (793 SE2d 446)
   Ray, Judge.

A jury convicted Brendon John Fitzpatrick of serious injury by vehicle (OCGA § 40-6-394) and violation of the open container law (OCGA § 40-6-253). He appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to sustain his convictions and that the trial court erred in its instructions to the jury 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 the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the jury’s verdict. Whitehead v. State, 304 Ga. App. 213, 214 (1) (695 SE2d 729) (2010).

Between 4:30 a.m. and 5:00 a.m. on September 5, 2013, Melvin Johnson, Jr., was driving to work, heading toward Northlake on Brockett Road. Fitzpatrick, who was driving in the opposite direction, struck Johnson’s vehicle as Fitzpatrick attempted to make a left turn. Although Johnson saw a vehicle heading toward him and braced himself, he did not recall the impact because it rendered him unconscious. An ambulance took Johnson to the hospital following the collision. His right leg was broken, and he wore a hip-to-ankle brace for six months and used a wheelchair, crutches, and a walker for months afterward. He could not walk on his own until eight months after the collision, and he still wears knee braces as a result of the incident.

The police officer who responded to the scene spoke to Fitzpatrick, who was standing next to the driver’s side of his vehicle. Fitzpatrick told the officer he had been driving. The officer noticed a strong smell of alcohol coming from Fitzpatrick’s person and that his eyes were watery and bloodshot. An open beer can was wedged between the passenger seat and the door. Fitzpatrick was not wearing pants; he was clad only in boxer briefs, a T-shirt, socks, and shoes. When the officer asked about this, Fitzpatrick acknowledged that he was wearing underwear. Although Fitzpatrick agreed to take the horizontal gaze nystagmus test, on which all six indicators showed alcohol impairment, he refused further field sobriety tests and swore at the officer. The officer then arrested Fitzpatrick based on the results of the test, the odor of alcohol, and his admission that he had been driving. The officer read Fitzpatrick the implied consent warning twice, but declined to read it again when Fitzpatrick requested that he do so a third time. Fitzpatrick refused a breath test but requested a blood test. However, he ultimately refused to sign the consent form for the blood test.

Fitzpatrick later told a nurse at the jail that he had been driving the vehicle. When he testified at trial in his own defense, he acknowledged that he had been drinking beer in the car and that he had been out drinking with friends. While he also acknowledged that he told the officer that he was driving, he claimed at trial that he actually had not been driving and that his friend had been at the wheel.

1. Fitzpatrick argues that the State failed to introduce evidence sufficient to sustain his convictions. We disagree.

(a) Serious injury by vehicle. Fitzpatrick contends that no witness testified to seeing him driving; that the State presented no medical evidence to corroborate the victim’s statements about the injuries to his leg; and that no expert or documentary evidence established that, as charged in the indictment, he caused the collision by turning left into the other driver’s path. He also argues that the State failed to prove an essential element of the offense as charged in the indictment. The evidence was sufficient to sustain his conviction for this offense.

OCGA § 40-6-394 provides, in part:

Whoever, without malice, shall cause 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 . . . which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 shall be guilty of the crime of serious injury by vehicle. . . .

First, the evidence was sufficient to authorize the jury to find that Fitzpatrick was driving. The evidence showed that he told a police officer and a nurse that he had been driving the vehicle. Although he later recanted this admission, the jury was authorized to believe his earlier statements. Whitehead, supra. Further, although Johnson did not remember the collision, he testified that he saw a car in his peripheral vision approaching from the left and braced himself for impact. The officer testified that he determined how the accident occurred through the statements of Johnson and of Fitzpatrick and his passenger. The officer specifically testified that Fitzpatrick told him the accident occurred as Fitzpatrick “was getting ready to make a left turn onto Highway 78 from Brockett Road.” See generally Wynn v. State, 236 Ga. App. 98, 100 (2) (511 SE2d 201) (1999) (totality of the circumstances, including defendant’s physical position and proximity to open beer can indicated that he was in physical control of vehicle and in possession of open container even though no one saw him driving the car).

Second, the evidence was sufficient to authorize the jury to find that Johnson’s injuries fell within the provisions of the serious injury by vehicle statute, OCGA § 40-6-394. Although Fitzpatrick argues that the State should have presented expert testimony as to Johnson’s injuries, Johnson testified about the injuries to his leg, that it was essentially useless for months and that he still used leg braces. See Keef v. State, 220 Ga. App. 134, 135, 137 (1) (a) (469 SE2d 318) (1996) (evidence sufficient where it demonstrated temporary uselessness of victim’s hip and legs). The testimony of a single witness is generally sufficient to establish a fact. See generally Brown v. State, 293 Ga. App. 224, 226 (1) (666 SE2d 600) (2008) (State not required to prove victim’s injuries with medical evidence where victim testified as to his injuries in an aggravated assault case).

Finally, Fitzpatrick argues that because the jury acquitted him of driving under the influence, the State failed to prove an essential element of the crime of serious injury by motor vehicle “as indicted.”

The indictment for the count of serious injury by motor vehicle provided that Fitzpatrick rendered one of Johnson’s knees useless “through a violation of Driving Under the Influence, as alleged in Count 2 of this indictment[.]” (Emphasis supplied.) This language tracks the language of OCGA § 40-6-394, which provides in pertinent part that a person may be convicted of serious injury by vehicle for rendering a member of the victim’s body useless “through the violation of Code Section . . . 40-6-391[, driving under the influence].” (Emphasis supplied.)

An analogous case is Leachman v. State, 286 Ga. App. 708, 708-709 (649 SE2d 886) (2007), in which this Court upheld the denial of a defendant’s plea in bar where the State had prosecuted defendant for vehicular homicide although the statute of limitation had run on vehicular homicide’s predicate offense of driving under the influence of alcohol. Leachman involves Georgia’s vehicular homicide statute (OCGA § 40-6-393 (a)), which contains nearly identical predicate language to that of the serious injury by vehicle statute (OCGA § 40-6-394). The vehicular homicide statute provides that “[a]ny person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of... [OCGA §] 40-6-391... commits the offense of homicide by vehicle[.]” (Emphasis supplied.)

Although Fitzpatrick argues that his acquittal for driving under the influence means that the State failed to prove he “violated” OCGA § 40-6-391 and thus failed to prove an essential element of the crime of serious injury by vehicle, Leachman provides otherwise. Contrary to Fitzpatrick’s assertions, Leachman determined that “Georgia’s [serious injury by vehicle] statute does not require, as an essential element of the offense, that a defendant be charged with or convicted of the predicate offense.” (Emphasis in original.) Leach-man, supra at 709. Rather, the language in the serious injury by vehicle statute, OCGA § 40-6-394, stating “ ‘through the violation of’ means that the State bears the burden of establishing a causal connection between the defendant’s violation of... [the driving under the influence statute, OCGA §] 40-6-391 . . . and the victim’s death.” (Citations and punctuation omitted.) Leachman, supra at 710.

Likewise in the instant case, the State met its burden of “establishing a causal connection” between the defendant’s violation of OCGA § 40-6-391 and the serious injury by vehicle as shown in the facts above, which include Fitzpatrick’s admission that he was driving the car and that he had been drinking in the car. See Leachman, supra. We discern no error.

(b) Fitzpatrick also contends that the evidence was insufficient to support his conviction for violating the open container law. We disagree.

OCGA § 40-6-253 (a) (2) provides in pertinent part that an “ ‘[o]pen alcoholic beverage container’ means any bottle, can, or other receptacle that: (A) Con tains any amount of alcoholic beverage, and (B) (i) Is open or has a broken seal; or (ii) The contents of which are partially removed.” (Emphasis supplied.)

Fitzpatrick argues that the evidence is insufficient because the officer testified that the beer can was empty, and the State failed to introduce the can into evidence. However, Fitzpatrick himself testified at trial that the beer in the car belonged to him and that he had been drinking it. He also testified that he remembered telling the woman he later alleged was driving in his stead that he would “take my beer with me” in the car. He testified that he assumed “there was still some in [the can]” and that the beer may have spilled on him during the accident because he “reeked of alcohol,” although his clothes were not wet. Given the fact that Fitzpatrick was wearing boxer shorts, a reasonable jury could have believed that he “reeked of alcohol” because the beer spilled on his bare legs rather than on his boxers and that the beer can Fitzpatrick claimed as his contained alcohol while he had it in the car. See Kalb v. State, 276 Ga. App. 394, 395 (1) (623 SE2d 230) (2005) (even though officer’s testimony established that bottle in defendant’s car was empty, defendant’s statement to officer that he drank beer while driving was proof that bottle had contained an alcoholic beverage); Geoffrion v. State, 224 Ga.App. 775, 779 (7) (482 SE2d 450) (1997) (evidence sufficient where defendant admitted against interest that he was drinking while driving, and where a glass smelling of alcohol was hidden under the passenger seat and the carpet was wet), overruled on other grounds by Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999).

2. Fitzpatrick argues that the trial court erred because it failed to charge the jury that it had to find every essential element of the serious injury by vehicle count “as indicted” in order to convict him. The thrust of his argument seems to be that the trial court should have instructed the jury that in order to convict Fitzpatrick of serious injury by vehicle, they also had to convict him of driving under the influence. We disagree.

First, the charge that Fitzpatrick’s counsel requested is substantially similar to the charge that the trial court gave. Both tracked the statutory language of OCGA § 40-6-394 by referring to “a violation” of OCGA § 40-6-391 (driving under the influence). As Fitzpatrick’s counsel raised no objection to this charge, we review this enumeration only for plain error. OCGA § 17-8-58 (b). Viewing the jury charges as a whole under the plain error standard, the correct inquiry is whether the instruction at issue was erroneous, whether it was obviously so, and whether the charge likely affected the outcome of the proceeding. Patterson v. State, 328 Ga. App. 111, 118-119 (4) (761 SE2d 524) (2014), outlining the standard set forth in State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

Decided October 27, 2016.

Elizabeth V. Rogan, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Viewing the charges as a whole, we note that the trial court charged the jury: “No person shall be convicted of any crime unless and until each element of the crime as charged is proven beyond a reasonable doubt.” Further, for the reasons discussed in Division 1 (b), that a conviction under OCGA § 40-6-394 (serious injury by vehicle) as charged does not require a conviction under OCGA § 40-6-391 (a), the jury instruction as given was not plain error.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       We note that some documents in the record also list the appellant’s first name as “Brendan.”

       Fitzpatrick was acquitted of driving under the influence of alcohol, less safe (OCGA § 40-6-391 (a) (1)). Although the statute has been amended since the occurrence of the crime, see Ga. L. 2013, pp. 294, 508, § 4-48, effective January 1, 2014; Ga. L. 2014, pp. 710, 721, 725, §§ 1-19, 4-1, effective July 1, 2014, the pertinent language is identical to that under which Fitzpatrick was tried and acquitted. See Ga. L. 2010, pp. 422, 423, § 1, effective July 1, 2010.

       Although on appeal Fitzpatrick mentions that trial counsel could have done a better job representing him on this point, he does not argue or enumerate as error the trial court’s determination on motion for new trial that he received effective assistance of counsel, so we do not address the issue here.

       “[DJriving under the influence can be the predicate offense for a conviction for causing serious injury by vehicle.” Kirkland v. State, 206 Ga. App. 27, 34 (17) (424 SE2d 638) (1992), citing OCGA § 40-6-394, supra. Georgia has abolished the inconsistent verdict rule. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Therefore, the fact that the jury acquitted Fitzpatrick of driving under the influence but convicted him of serious injury by vehicle does not render the verdict invalid. See Stover v. State, 324 Ga. App. 467, 468 (751 SE2d 115) (2013) (finding that where an appellate court does not know the reason for the jury’s verdict, it need not invalidate the conviction on a compound offense even if it is logically inconsistent with an acquittal on the underlying offense, but should uphold the conviction if the evidence supports it). See also Fletcher v. State, 307 Ga. App. 131, 134 (6) (704 SE2d 222) (2010) (defendant’s acquittal on reckless driving as a predicate offense did not exclude his conviction for homicide by vehicle).


author: Per curiam.

text:
    A16A1593.
    CARTER v. THE STATE.
    (793 SE2d 459)
   Per curiam.

A Clayton County jury found Ishmael Carter guilty of armed robbery, aggravated assault with intent to rob, and aggravated assault with a deadly weapon. Carter appeals from the denial of his motion for a new trial, raising the general grounds and contending that his trial counsel was ineffective. Finding no reversible error, we affirm the judgment of conviction.

Viewed in the light most favorable to the jury’s verdict, see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the record reveals the following. Carter was friends with Desmond Nixon and Julius Thomas. On January 7, 2013, using Thomas’s cell phone, they placed a delivery order with the China Express Restaurant. Using her employer’s car, the victim drove the order to 293 Roxbury Drive, the address she had been given, but she found the house abandoned. She called Thomas’s cell phone, and Carter answered and said, “I’m standing over here [behind your car] Carter directed the victim to pull into the driveway of the abandoned house and then he got into the car with her, ostensibly to wait for his friends to bring money to pay for the food. When Thomas emerged from behind the abandoned house, Carter got out of the car to talk to him, leaving open the passenger door. The two men then walked around to the driver’s side of the car as Nixon slipped into the passenger seat next to the victim.

Nixon pointed a gun at the victim’s side and demanded money Nixon told Carter that they were going to kill the victim. Nixon took the victim’s cell phone, ordered her to disrobe, and raped her in the front seat of the car. During the rape, the victim could not escape from the car because Carter was standing in front of the driver’s door. Thomas took the Chinese food. After Nixon exited the car, the victim got dressed, and started driving to the police station. She was driving so fast that she had an accident and had to be taken to the hospital.

After the victim’s cell phone was stolen, she had the number transferred to a new phone. She received phone calls from numbers that she did not recognize, asking to speak to “Smurf.” Carter’s nickname is “Smurf.”

1. Carter asserts that the evidence is insufficient to support his convictions for armed robbery and aggravated assault because he was not personally armed, did not personally take anything from the victim, and there was no evidence of a plan to rob the victim.

Under Georgia law, a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or immediate presence of another by use of an offensive weapon. OCGA § 16-8-41 (a). A person commits the offense of aggravated assault when he commits an assault with the intent to rob or with a deadly weapon. OCGA § 16-5-21 (b) (1), (2). Furthermore, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Whether a person is a party to a crime is a question for the jury. Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006).

While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Punctuation omitted.) McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991). Indeed, “[w]e have affirmed a conviction for armed robbery where the defendant, while present during the crime, did not verbally threaten the victim; did not hold or shoot the gun used; and claimed no advance knowledge of the crime.” Campbell v. State, 314 Ga. App. 299, 304 (724 SE2d 24) (2012) (footnote omitted).

Here, the victim testified that Carter answered the phone when she called, directed her to park at the vacant house, and left open the car door, which allowed Nixon to enter. Carter then stood outside the victim’s car, blocking her escape, while Nixon threatened her, raped her at gunpoint, and stole her cell phone. Then, after her phone was stolen, the victim received calls for Carter. Thus, Carter’s conduct before, during, and after the attack was sufficient to authorize the jury to convict him of armed robbery and aggravated assault as a party to the crimes. See Whitley v. State, 293 Ga. App. 605, 607 (1) (667 SE2d 447) (2008) (evidence of the defendant’s conduct during and before home invasion robbery, including confirming that the victim was home alone and speaking to the gunman, was sufficient to authorize conviction for armed robbery and aggravated assault, among other crimes); Lunz v. State, 174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985) (evidence that the defendants accompanied gunman to a convenience store and stood on either side of him as he held up the store and shot the clerk was sufficient to sustain convictions for armed robbery and aggravated assault). See also Campbell, 314 Ga. App. at 304 (evidence that the defendant accompanied accomplice to the crime scene, acted as a lookout, and shared in the proceeds was sufficient to authorize conviction for armed robbery).

2. Carter also contends that the trial court erred in denying his motion for new trial on the “general grounds.” Specifically, Carter asserts that, sitting as the “thirteenth juror,” the trial court should have granted Carter a new trial after the jury found him not guilty of rape because the evidence of his participation in the robbery and rape were the same. We find no error.

Under OCGA § 5-5-20, a trial court may grant a new trial if it decides that the jury’s verdict is contrary to the principles of justice and equity, and under OCGA § 5-5-21, a trial court may grant a new trial if the verdict is decidedly and strongly against the weight of the evidence. “Such matters are left to the sound discretion of the trial court.” (Punctuation omitted.) Rowland v. State, 228 Ga. App. 66, 68 (2) (491 SE2d 119) (1997). As an appellate court, our review is limited to determining whether the evidence was sufficient as a matter of law. See Sallywhite v. State, 317 Ga. App. 415, 416 (731 SE2d 98) (2012). As set forth above, the victim’s testimony was sufficient to establish that Carter was a party to armed robbery and aggravated assault, and the trial court did not abuse its discretion in denying Carter’s motion for new trial on general grounds. See Rowland, 228 Ga. App. at 68 (2) (trial court did not abuse its discretion in denying motion for new trial on general grounds where victim’s testimony established defendant’s guilt).

3. Carter also contends that his trial counsel rendered ineffective assistance. We disagree.

To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different,.

Bihlear v. State, 295 Ga. App. 486, 488 (2) (672 SE2d 459) (2009).

(a) Carter argues that his trial counsel was ineffective in failing to file a motion to sever the charges against him from those against his co-defendants.

In addition to the crimes against the victim on January 7, 2013, Nixon and Thomas were also charged with another robbery and assault that occurred on January 22, 2013, and with a murder that occurred on January 24, 2013. At the hearing on the motion for new trial, trial counsel testified that she decided not to seek a severance for strategic reasons, so that she could paint Carter’s co-defendants as more culpable and argue that Carter was merely present during their commission of the crimes on January 7. Trial counsel discussed this strategy with Carter.

“As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Punctuation omitted.) Lott v. State, 303 Ga. App. 775, 783 (3) (694 SE2d 698) (2010). Where trial counsel does not file a motion to sever because counsel believes the jury will find the co-defendant or co-defendants more culpable, that is a matter of reasonable trial strategy, and it does not constitute deficient performance. See Jackson v. State, 281 Ga. 705, 707 (6) (642 SE2d 656) (2007); Lott, 303 Ga. App. at 784 (3). Accordingly, trial counsel was not ineffective in this regard.

(b) Carter also asserts that trial counsel was ineffective in failing to request a directed verdict because the evidence was insufficient. However, where, as here, the evidence is sufficient to support the jury’s verdict, the failure to make a meritless motion for directed verdict is not ineffective assistance as a matter of law. See Hendrix v. State, 328 Ga. App. 819, 821 (2) (a) (762 SE2d 820) (2014). Consequently, this claim of error also lacks merit.

Judgment affirmed. Division Per Curiam.

All Judges concur.

Decided October 27, 2016.

Viveca R. Famber Powell, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

       The court merged the aggravated assault charges with Carter’s conviction for armed robbery. The jury found Carter not guilty of rape, aggravated assault with intent to commit rape, and three counts of possession of a weapon during the commission of a crime.

       Thomas’s and Nixon’s appeals are pending before the Supreme Court of Georgia. See Case Nos. S16A1520, S16A1521.