source: Caselaw Access Project

author: McMillian, Judge. McFADDEN, Judge,

license: Public Domain

text:
    A16A0919.
    GILMER v. THE STATE.
    (794 SE2d 653)
   McMillian, Judge.

Darius Gilmer appeals from his convictions for child molestation and aggravated child molestation against then-11-year-old F. P, arguing that he received ineffective assistance of trial counsel and that the trial court erred in dismissing a juror during the trial. For the reasons that follow, we find no error and affirm.

Viewed in the light most favorable to the verdict, see Douglas v. State, 327 Ga. App. 792, 792 (1) (761 SE2d 180) (2014), the evidence shows that for several months in 2007, Gilmer had a relationship with F. P’s mother. Gilmer sometimes stayed at the mother’s apartment with F. P and his younger brother, W. G., while the mother was at work. On several such occasions, Gilmer engaged in sexual contact with F. P These incidents included Gilmer having F. P use his hand to stroke Gilmer’s unclothed penis until Gilmer ejaculated; Gilmer penetrating F. P’s anus with his penis while in the shower; and Gilmer touching F. P’s penis while masturbating.

In 2008, the mother and the two boys moved to another state to live with a family friend. That friend began to suspect that F. P’s brother, W. G., had been molested after W. G. inappropriately touched another child. She questioned both F. P and W. G. separately, and both boys told her that they had been molested. They repeated their outcries in forensic interviews conducted by a law enforcement officer.

The indictment charged Gilmer with committing the offense of child molestation by touching F. P.’s penis with his hand and having F. P. touch his penis with his hand, and with committing the offense of aggravated child molestation by penetrating F. P’s anus with his penis. At trial, Gilmer was found guilty of both charges. After his motion for new trial, as amended, was heard and denied, he filed this appeal.

1. Although not enumerated as error, we find at the outset that the evidence recounted above was sufficient for the jury to find Gil-mer guilty of these offenses under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See OCGA § 16-6-4 (a) (child molestation); OCGA § 16-6-4 (c) (aggravated child molestation).

2. In his first enumeration of error, Gilmer argues that trial counsel rendered ineffective assistance by: (1) failing to object to the bolstering testimony of the State’s expert and the family friend who initially received the outcry; (2) failing to obtain and utilize DFCS and therapy records for the children; and (3) failing to obtain and introduce evidence of the mother’s arrest for perjury We discern no error in the trial court’s denial of the motion for new trial on these grounds.

To prevail on his claim of ineffective assistance of trial counsel, Gilmer “must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different,.” Daniel v. State, 338 Ga. App. 389, 392 (3) (787 SE2d 281) (2016). “In reviewing a claim of ineffective assistance, we give deference to the trial court’s factual findings and credibility determinations unless clearly erroneous, but we review a trial court’s legal conclusions de novo.” Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014).

(a) Gilmer first argues that his counsel was deficient for, among other things, failing to object to testimony from two witnesses that improperly bolstered the credibility of F. P Our Evidence Code provides that “[t]he credibility of a witness shall be a matter to be determined by the trier of fact[.]” OCGA § 24-6-620. “It is well established that a witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury” (Citations omitted.) Bly v. State, 283 Ga. 453, 459 (3) (660 SE2d 713) (2008); see also Walker v. State, 296 Ga. App. 531, 535 (1) (b) (675 SE2d 270) (2009).

The State’s expert witness, Anique Whitmore, testified at trial about F. P.’s use of the word “blowtorch” to describe his experience of the aggravated molestation during a forensic interview. When asked why “that kind of descriptive language [is] important in a disclosure of abuse,” Whitmore responded:

. . . [W]hen you look for the genuine nature of a child’s response, you look for words that one would assume — feeling like a — if you got hit by a blowtorch what that might feel like. A child this age perhaps has never experienced anything like this before. That to them is how they describe that pain, that interaction, that force. For him, perhaps he saw a blowtorch and that’s how he would — would relate that pain. So the — the spontaneity and the genuineness of that response, for me, adds credibility to what [F. R] was saying.

We agree that this testimony constitutes improper bolstering. See Buice v. State, 239 Ga. App. 52, 55 (2) (520 SE2d 258) (1999) (expert witnesses may not testify regarding truthfulness or credibility). However, to establish his claim of ineffective assistance of counsel, Gilmer must also demonstrate that his trial counsel’s failure to object to this testimony was constitutionally deficient. See Ford v. State, 298 Ga. 560, 566 (8) (783 SE2d 906) (2016). There is a “strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citation and punctuation omitted.) Green v. State, 291 Ga. 579, 581 (2) (731 SE2d 359) (2012). “[Hindsight has no place in an assessment of the performance of trial counsel, and a lawyer second-guessing his own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim.” (Citation and punctuation omitted.) Simpson v. State, 298 Ga. 314, 318 (4) (781 SE2d 762) (2016) (even where counsel rejected characterization of his performance as strategic, examination of his entire testimony shows his decisions were, in fact, strategic). See also McNair v. State, 296 Ga. 181, 184 (2) (b) (766 SE2d 45) (2014) (“Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.”) (citation and punctuation omitted).

Moreover, as explained by our Supreme Court,

we are not limited in our assessment of the objective reasonableness of lawyer performance to the subjective reasons offered by trial counsel for his conduct. If a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different, reasons entirely — the actual lawyer cannot be said to have performed in an objectively unreasonable way.

Shaw v. State, 292 Ga. 871, 875 (3) (a) n.7 (742 SE2d 707) (2013).

With respect to Whitmore’s bolstering testimony, a review of the record reveals that a reasonable lawyer might have decided not to object and that such decision would fall within the realm of sound trial strategy Whitmore was called as an expert witness by the State in forensic interviewing and forensic psychotherapy and was qualified without objection by trial counsel. On direct, Whitmore explained that she had not conducted the forensic interviews of the children, which had taken place in Kentucky. However, she testified at length regarding the nature of forensic interviews and various relevant factors to evaluate the interviews, including signs the victim has been coached, the use of leading questions, the child’s suggestibility, rapport building, and studies regarding why a child victim may or may not disclose sexual abuse to one individual versus another. Whitmore intimated that she was critical of the forensic interview several times, noting that “there were areas in which [she] would suggest adjusting,” that there was confusion between the interviewer and the child at times, and that she might have asked certain questions “in a different, way”

On cross-examination, trial counsel established that Whitmore had no personal knowledge whether the children had been molested and had not interviewed them. Trial counsel also was able to elicit that Whitmore was an experienced expert in this area and that she was critical of the way that the forensic interviews were conducted, including that she “would not give [the interviews] a higher — a very high grade”; some of the questions were leading and suggestive; the interviewer did not ask follow-up questions to ensure a full disclosure from the child; and the interviewer spent more time in building rapport with the child than drawing out details of the allegations.

It is clear from the face of the record that trial counsel’s strategy was to co-opt Whitmore as his own expert witness to challenge the way that the forensic interviews were conducted. Under these circumstances, it would not have been unreasonable for counsel to decline to object to the bolstering testimony, inasmuch as it would draw attention to an error Whitmore made in her testimony, which would be inconsistent with counsel’s attempt to show that Whitmore was a qualified expert who had serious concerns with the forensic interviews. See Jones v. State, 292 Ga. 593, 600-01 (740 SE2d 147) (2013) (reasonable for counsel to fail to object to bolstering testimony by law enforcement). See also Terry v. State, 284 Ga. 119, 122 (2) (d) (663 SE2d 704) (2008) (“It is reasonable strategy for defense counsel to place disagreeable information before the jury in a manner he can control rather than allow the subject matter to be presented in a more damaging fashion.”). Moreover, even if counsel had objected, the State could have fairly easily had Whitmore rephrase her testimony to say that the use of the word “blowtorch” was consistent with how a child might describe being molested. See Odom v. State, 243 Ga. App. 227, 227 (1) (531 SE2d 207) (2000). A reasonable lawyer thus might have concluded that objecting on the grounds of bolstering would simply emphasize the error, giving the State an opportunity to present similar nonobjectionable testimony and magnifying any harmful implications from it. See Jones, 292 Ga. at 602.

(b) The State also presented the testimony of a family friend with whom F. P. and his family had been living regarding the outcries that F. P. and his younger brother made to her about the molestation. On cross-examination, Gilmer’s trial counsel established that this witness had never met Gilmer. The questioning proceeded:

[COUNSEL]: But you are so certain and positive that this stuff happened?
[WITNESS]: I’m positive that it happened because —

Counsel then interrupted the witness, drawing an objection from the State. The court ruled that the witness could finish her answer, which led to the following colloquy:

[WITNESS]: I know this happened for a fact to these kids because these kids wouldn’t sit up here and lie. But I have something to say because, for one, I’m one of them kids, too. And when [F. P] told me that — we was the same age that we was both molested. And —
[COUNSEL]: So you’ve been molested before?
[WITNESS]: Yes, I have. I was molested by my uncle. But [F. P] didn’t even know that. After he told me what happened to him, I told him, me and you have something in common: I was molested. And he looked at me and said, Aunt Miss [A. R], you was? I said, yes, I was. We both hugged each other and we both cried. So I don’t have no reason to sit up here and lie or come in here and tell a story or anything. I believe them children.

We agree that this witness also gave improper bolstering testimony See Barmore v. State, 323 Ga. App. 377, 382 (3) (746 SE2d 289) (2013) (witness’s testimony that she knew victims “wouldn’t lie to [her]” was improper bolstering). However, we again find that reasonable trial counsel might not have objected to or moved to strike this testimony At the new trial hearing, trial counsel testified that he did not find this testimony to be prejudicial to his client’s defense because she was crying while on the stand, had never even been in the same state as the defendant, and counsel “was trying to draw out that she was just speaking on emotion rather than just the facts.” And while he admitted that it was probably not the trial strategy that he predicted before the trial happened, trial counsel explained that

during the moments that she was testifying, and I think she was being real emotional, it’s quite a possibility that I wanted to get out to the jury that’s an emotional thing, that she really has no — she never observed or saw, or heard anything up to that point, so, how could she be so sure, when she had no personal observation, whatsoever.

We find that this was within the wide range of reasonable trial strategy See Arnold v. State, 292 Ga. 268, 270 (2) (a) (737 SE2d 98) (2013) (“There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”) (citation omitted); Phillips v. State, 277 Ga. 161, 163 (587 SE2d 45) (2003) (Constitution does not guarantee representation by a lawyer who is errorless but one who renders reasonably effective assistance). Accordingly, we find no error in the denial of Gilmer’s motion for new trial on this ground.

(c) Gilmer also enumerates as error his trial counsel’s failure to obtain and introduce evidence of F. R’s mother’s arrest for perjury. It is undisputed that the charges were later dismissed. OCGA § 24-6-608 (b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime as provided in Code Section 24-6-609, or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness[.]

Thus, while trial counsel clearly would not have been permitted to introduce extrinsic evidence of the mother’s arrest for perjury, it is possible that he may have been able, subject to the trial court’s discretion, to cross-examine her regarding the arrest. See Gaskin v. State, 334 Ga. App. 758, 762 (1) (a) (780 SE2d 426) (2015).

However, we have serious concerns as to whether evidence of the mother’s arrest, standing alone, and where the charges were subsequently dismissed, would be probative of her truthfulness. See, e.g., United States v. Lundy, 416 FSupp.2d 325, 332-33 (III) (A), (B) (E.D. Pa. 2005) (evidence of defendants’ prior arrests for false statements to police that were later dismissed or resulted in acquittal were excluded at trial on grounds that prejudicial effect would outweigh probative value, especially where the government offered no evidence to suggest defendants were in fact guilty of those charges). Because Gilmer did not call the mother to testify at the new trial hearing, there is no evidence in the record as to what her testimony would have been regarding the previous arrest. In the absence of such evidence, Gilmer has failed to make an affirmative showing that, had his trial counsel attempted to cross-examine the mother regarding the arrest, it would have been allowed in the discretion of the trial court. See OCGA § 24-6-608 (b). See also Jones v. State, 299 Ga. 377, 384 (5) (788 SE2d 477) (2016) (failure to make a meritless objection cannot constitute evidence of ineffective assistance); Leopold v. State, 324 Ga. App. 550, 555-56 (1) (b) (751 SE2d 184) (2013) (defendant unable to show ineffective assistance for failure to impeach witness with prior criminal record where he failed to establish that evidence would have been admissible). Moreover, because he failed to proffer evidence regarding the mother’s testimony in this regard, he cannot make the requisite showing of prejudice. See Reaves v. State, 292 Ga. 545, 550 (4) (739 SE2d 368) (2013).

(d) Gilmer also asserts that his trial counsel provided ineffective assistance when he failed to obtain and utilize the children’s DFCS and counseling records, which related to events after the alleged molestation but before trial. We disagree. At the motion for new trial hearing, trial counsel testified that he was generally familiar with the procedure for requesting DFCS and therapy records. Specifically, trial counsel testified that his trial strategy for investigating similar child molestation cases was, “If I received information that DFCS may be involved in something, I’ll file a motion [to request the records]. . . (Emphasis supplied.) And to determine whether DFCS may have been involved in a case, his strategy was to submit a discovery motion to the State and to get the information from “the client, or family or friends of the client or something along those lines to lead me to information about DFCS records.” Trial counsel did not testify, however, that he received any information in this case that would have led him to believe there were relevant DFCS or therapy records, and nothing else in the record indicates that counsel had notice of any relevant records. Thus, Gilmer has failed to overcome the strong presumption that counsel’s conduct fell within the broad range of reasonable professional conduct. See Kimble v. State, 301 Ga. App. 237, 249 (7) (d) (687 SE2d 242) (2009) (although “reasonable professional judgment requires proper investigation,” trial counsel was not deficient for failing to discover additional relevant documents where he had no indication that the State had, in addition to seizing items from the residence, recovered documents from a vehicle). See also Dority v. State, 335 Ga. App. 83, 107 (4) (i) (780 SE2d 129) (2015) (“The simple fact that additional documents might have been helpful is not enough.”).

Moreover, even assuming arguendo that trial counsel’s performance was deficient, we find that Gilmer has failed to show that there is a reasonable probability that obtaining the records would have led to a different, trial outcome. Gilmer first argues that the records contained discrepancies regarding whether the children first made their outcry of sexual abuse in Georgia or after they moved to Kentucky However, whether the children made their initial outcry in Georgia or Kentucky was not relevant to trial counsel’s strategy, which was to discredit the children’s mother as a spurned lover and to attack the children’s ability to identify Gilmer following the passage of six years. And trial counsel pursued this strategy during his cross-examination of both F. P. and his mother and his direct examination of Gilmer’s mother.

Moreover, it is undisputed that statements in the records are consistent with their outcry that F. P. was “molested by [his] mom’s boyfriend.” Thus, Gilmer’s reliance on Darst v. State, 323 Ga. App. 614 (746 SE2d 865) (2013) (physical precedent only) is misplaced. In Darst, which is not binding authority, this Court found that DFCS records were necessary to obtain an expert witness’ determination that the children’s behavior was inconsistent with having been molested by the defendant and that other explanations existed for their behavior. Id. at 620 (2) (a) (i). And an in camera review of the records revealed information that, if the children had been molested, it was by someone other than the defendant. Id. Those circumstances are not present in this case. Here, we find no evidence that trial counsel had any indication that the DFCS and counseling records would have assisted him in defending Gilmer, and the records do not identify anyone other than Gilmer as the person who sexually abused the children. See Dority, 335 Ga. App. at 107 (4) (i).

Gilmer also maintains that the records reveal numerous instances of prior untruthful conduct on the part of F P. and his brother and provide an alternative explanation for the children’s “flat affect” during their forensic interviews in 2008, which the State’s expert witness testified was consistent with the alleged sexual abuse. However, the incidents of sexual abuse for which Gilmer was convicted all took place in 2007, whereas the alleged alternative explanation for the children’s flat affect occurred in 2009. And the alleged incidents of dishonesty on the part of the children all took place in 2009 and 2010, involving matters wholly unrelated to the identity of the person who sexually abused F. P See Glass v. State, 255 Ga. App. 390, 403 (10) (f) (565 SE2d 500) (2002) (no ineffective assistance where claim that trial counsel failed to subpoena victim’s counseling records relied on speculation that victim suffered from excessive lying and had difficulty distinguishing between fact and fiction because defendant was unable to show victim’s mental condition or treatment was relevant to or affected credibility of her rape allegations).

Accordingly, we also find that Gilmer cannot satisfy the prejudice prong of the Strickland test; that is, he has failed to show “a reasonable probability that, but for counsel’s unprofessional errors, the re-suit of the proceeding would have been different.” (Citation and punctuation omitted.) Aikens v. State, 297 Ga. 229, 231 (3) (773 SE2d 229) (2015).

3. And finally, Gilmer asserts that the trial court erred in removing a juror during the course of the trial. Although he acknowledges that this decision was within the trial court’s discretion, see Moon v. State, 288 Ga. 508, 512 (5) (705 SE2d 649) (2011), he nonetheless argues that the trial court abused this discretion because there was no factual or legal support for the juror’s removal. We are unpersuaded.

Georgia law “provides that the trial court may remove a juror at any time, whether before or after final submission of the case to the jury if good cause is shown to the court that the juror is unable to perform his duty, or for other legal cause.” (Citation and punctuation omitted.) Moon, 288 Ga. at 512 (5). See also OCGA § 15-12-172. “There must be some sound basis upon which the trial judge exercises his discretion to remove the juror.” (Citation and punctuation omitted.) State v. Arnold, 280 Ga. 487, 489 (629 SE2d 807) (2006). The record in this case shows that the trial court removed the juror out of a concern that the other jurors had developed an impression — right or wrong — that the juror had outside knowledge about the case through acquaintance with Gilmer’s mother.

During the second day of trial, Gilmer’s counsel made the trial court aware that Gilmer’s mother, an anticipated witness for the defense, recognized one of the jurors, Juror No. 10, as someone she knew from church. The trial court questioned the juror, who denied knowing her. Over the State’s objection, the trial court declined to dismiss Juror No. 10. Gilmer’s mother testified during the third day of trial, at which point Juror No. 10 notified the trial court that he did actually recognize her, and that the jury had talked about it the previous day. The trial court expressed concern over Juror No. 10 having discussed the matter with the other jury members and noted that “the jury started laughing” when Juror No. 10 was called from the jury room for questioning. The trial court worried that the jury’s laughter might indicate that the jury believed Juror No. 10 knew something about the case that they did not and therefore might cause the jury to give undue weight to Juror No. 10’s opinions during deliberations. The State again asked the trial court to remove Juror No. 10, and the trial court took the matter under advisement.

After the close of evidence, the trial court removed Juror No. 10, explaining that the jury’s laughter was clearly audible from the jury room when the deputy had summoned Juror No. 10 to the courtroom. The trial court also noted that Juror No. 10 had said “they recognize I keep coming out because there’s supposed to be someone out here that I know,” and that he was certain that he knew Gilmer’s mother. We find that the trial court, following its investigation into Juror No. 10’s familiarity with the defense witness and his statements made to and in the presence of the other jurors, developed sufficient factual and legal support for its decision to remove Juror No. 10. See Moon, 288 Ga. at 513 (5). Accordingly, the trial court did not abuse its discretion, and this enumeration provides no basis for reversal. See Clark v. State, 282 Ga. App. 248, 253 (4) (638 SE2d 397) (2006) (trial court did not abuse its discretion in removing a juror who later admitted knowing defendant from seeing him at her work).

Judgment affirmed.

Ellington, P. J., Dillard, Branch, Mercier and Peterson, JJ., concur. Miller, P. J., Phipps, P. J., and McFadden, J., dissent.

McFADDEN, Judge,

dissenting.

Gilmer has shown that his trial counsel’s failure to object to the bolstering testimony of two witnesses was deficient performance and so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different,. See Daniel v. State, 338 Ga. App. 389, 392 (3) (787 SE2d 281) (2016). Because Gilmer has shown that he received ineffective assistance of counsel, his convictions should be reversed. I therefore respectfully dissent.

1. Deficient performance.

As the majority finds, both the state’s expert witness and the family friend to whom F. P. made his outcry gave impermissible bolstering testimony And at the hearing on the motion for new trial, Gilmer’s trial counsel agreed that these were both instances of improper bolstering testimony and that such testimony generally should draw an objection. Trial counsel testified that there was no strategic reason for his failure to object to the bolstering testimony of the expert witness. He further testified that he did not think to object to the bolstering testimony of the family friend; instead, he was focused on “trying to draw out that [the witness] was just speaking on emotion rather than just the facts” and had “never observed or [seen], or heard anything up to that point, so, how could she be so sure, when she had no personal observation, whatsoever.”

While “trial counsel is afforded tremendous deference over matters of trial strategy,” such “trial strategy must be reasonably supported and within the wide range of professionally competent assistance.” Westbrook v. State, 291 Ga. 60, 64 (4) (b) (727 SE2d 473) (2012) (citation and punctuation omitted). In Orr v. State, 262 Ga. App. 125 (584 SE2d 720) (2003), for example, we held that trial counsel’s performance fell outside the range of professionally competent assistance when he failed to object to improper bolstering testimony because he did not perceive it to be a comment on the witness’s credibility and because, in any event, he did not believe the testimony was harmful. Id. at 129 (3).

A strategic choice is necessarily part of a strategy. It is a choice to forgo one potential advantage in favor of another. See, e.g., Jones v. State, 325 Ga. App. 895, 898 (2) (d) (755 SE2d 815) (2014) (discussing counsel’s strategic decision to forgo cross-examination of witness in favor of “another tactical method or goal”). Although a decision not to object may be a part of a reasonable trial strategy, see Walker v. State, 329 Ga. App. 369, 376 (3) (d) (765 SE2d 599) (2014), the record does not show that trial counsel made any such decision in this case. To the contrary, trial counsel’s testimony shows that he made no decision at all concerning the improper bolstering. Trial counsel admitted to having no strategic reason for not objecting to the expert witness’s testimony, and while he explained his efforts to mitigate the family friend’s testimony, trial counsel did not indicate that he had done so as an intentional strategic alternative to an objection; rather, he simply did not think to object. The record does not reflect, nor did the trial court find, that trial counsel made a strategic decision not to object to the family friend’s bolstering testimony but instead to subject it to cross-examination. Cf. Billington v. State, 313 Ga. App. 674, 677 (1) (722 SE2d 395) (2012) (“Not objecting to testimony, but instead subjecting it to cross-examination, may be part of a reasonable trial strategy”) (citations, punctuation and footnote omitted). Moreover, I do not see how an objection would have been inconsistent with his approach to the witness. Compare Barmore v. State, 323 Ga. App. 377, 383 (3) (746 SE2d 289) (2013) (declining to conclude that decision to cross-examine witness rather than object to bolstering testimony was unreasonable trial strategy where objection would have been inconsistent with cross-examination of witness).

Trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U. S. 668, 690 (III) (A) (104 SCt 2052, 80 LE2d 674) (1984) (emphasis supplied).

But invoking the words “tactics” and “strategy” does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances. “Tactics” and “strategy” provide no talis-manic protection against an ineffective assistance of counsel claim.

Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004) (citation and punctuation omitted). And this court has held that where trial counsel testified that her failure to make a valid objection “did not arise from a strategical decision[, it] follow[ed] that trial counsel’s performance in this regard was deficient.” Arellano v. State, 304 Ga. App. 838, 841 (698 SE2d 362) (2010) (citations omitted). None of the cases cited by the majority require us to assess the reasonability of a decision where, as here, the record shows that no such decision was made.

For this reason, Gilmer overcame “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U. S. at 689 (III) (A) (citation and punctuation omitted). See Mann v. State, 252 Ga. App. 70, 73 (1) (555 SE2d 527) (2001) (finding that record did not support state’s contention that trial counsel’s failure to object to bolstering testimony constituted trial strategy, where trial counsel testified that “it was not trial strategy on her part for the jury to hear either witness testify that she believed the victim was telling the truth or that she believed the victim had been molested”).

2. Prejudice.

For Gilmer to satisfy the prejudice prong for ineffective assistance of counsel, the “likelihood of a different result must be substantial, not just conceivable.” Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (citation omitted). Nevertheless, his “burden is to show only a reasonable probability of a different outcome in the trial because of trial counsel’s deficient performance, not that a different, outcome would have been certain or even more likely than not.” Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008) (citations and punctuation omitted). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009), quoting Strickland, 466 U. S. at 694 (III) (B).

And this is a case in which we should not be too sure that the outcome is right. As an investigating officer conceded at trial, the boys’ outcries were the only evidence that Gilmer had molested F. P. There was no corroborating physical evidence of molestation. The outcries occurred more than a year and a half after the molestation was alleged to have occurred. The state’s expert witness admitted that the forensic interviews of the boys were not well done; the interviewer asked some leading questions of the boys, did not elicit full disclosures from them, and appeared to confuse the younger boy, W. G., with his questioning. At trial, F. P. gave testimony that contradicted part of his earlier outcry regarding the aggravated molestation; he stated that Gilmer had not succeeded in his attempt to anally penetrate F. P in the shower. And W. G. testified at trial that he did not remember Gilmer doing to him the things that W. G. had described in his outcry. Moreover, there was evidence that the boys disliked Gilmer for a reason unrelated to the alleged molestation; they both had witnessed Gilmer commit acts of violence against their mother, to the point where, at times, the boys felt compelled to defend their mother with a knife.

This court has found bolstering testimony to be particularly harmful under circumstances such as these. In Orr, 262 Ga. App. at 129 (2), we held that where no physical evidence of rape was presented and the only evidence against the defendant was the victim’s testimony, “[a]ny bolstering of that critical testimony was extremely harmful to the defendant.” But for trial counsel’s deficiency in failing to object to the harmful bolstering testimony, we held, “the outcome of the trial could very well have been different.” Id. at 129 (3). Similarly, in Walker v. State, 296 Ga. App. 531, 535 (1) (b) (675 SE2d 270) (2009), we held that a defendant had shown he was prejudiced by his trial counsel’s failure to object to testimony that bolstered the credibility of a molestation victim, where the victim’s testimony was the only evidence that the crime had occurred. In so doing, we noted that, “[i]n cases where we have affirmed convictions despite this type of improper testimony, there has been other evidence of guilt or other testimony which minimized the effect of the improper testimony.” Id. (citations omitted). No such other evidence existed here.

Decided November 18, 2016

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

Robert D. James, Jr., District Attorney, Gerald Mason, Elizabeth D. Racine, Assistant District Attorneys, for appellee.

Consequently, “a reasonable probability — a probability sufficient to undermine confidence in the outcome — exists that but for trial counsel’s unprofessional errors [in failing to object to the witnesses’ bolstering testimony], the outcome of this trial would have been different.” Douglas v. State, 327 Ga. App. 792, 802 (2) (b) (iii) (761 SE2d 180) (2014) (citations and punctuation omitted). Gilmer has met his burden of showing that he received ineffective assistance of trial counsel, and his convictions should be reversed for that reason.

I am authorized to state that Presiding Judge Miller and Presiding Judge Phipps join in this dissent.

       The indictment also charged Gilmer with an offense against W. G., but that charge was placed on the dead docket.

       Because this case was tried in 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 2.

       The family friend would not agree to speak with him prior to trial.

       The provisions of OCGA § 24-6-608 were patterned after Rule 608 of the Federal Rules of Evidence. See Gaskin, 334 Ga. App. at 762 (1) (a).

       See Court of Appeals Rule 33 (a).

       We also note that the trial court expressed concern at the new trial hearing regarding the admissibility of the records at trial. See Jones, 292 Ga. at 598 (5).

       For example, Gilmer points out that the children exhibited flat affect following a brutal domestic violence incident in 2009.

       Gilmer asserts that the cumulative effect of his trial counsel’s errors mandate a finding that counsel was ineffective. “We evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors.” (Citation and punctuation omitted.) Wofford v. State, 329 Ga. App. 195, 207 (5) (f) (764 SE2d 437) (2014). Here, even if trial counsel’s performance was deficient with respect to the failure to obtain the DFCS records and the mother’s arrest record, for the reasons explained in Division 2 (a) and (b), he has failed to show a reasonable probability that, but for those deficiencies, the outcome of his trial would have been different. See id. See also Waits v. State, 282 Ga. 1, 6 (4) (644 SE2d 127) (2007) (“Permitting the effect of‘non-errors’ to be cumulated in order to reverse a conviction would vest nearly uncontrolled discretion in the appellate courts.”) (citation omitted).

       The trial court further noted that Juror No. 10 had waved toward the State’s table while Gilmer’s mother was on the witness stand, likely making the jury aware of whom he was supposed to know.

       The trial court found that the family friend’s bolstering testimony was not responsive to questions from Gilmer’s trial counsel and that trial counsel did not elicit that testimony. However, the trial court also found that, had Gilmer’s trial counsel elicited the bolstering testimony, that act would have been consistent with a reasonable trial strategy of emphasizing the witness’s emotionality and lack of factual knowledge. And the trial court held that, had Gilmer’s trial counsel elicited the bolstering testimony, he could not have objected to it. Gilmer’s trial counsel testified that he neither intentionally elicited the bolstering testimony nor sought it as part of his trial strategy.


author: MILLER, Presiding Judge. McFADDEN, Judge,

text:
    A16A1165.
    BARNES v. SMITH.
    (794 SE2d 262)
   MILLER, Presiding Judge.

Deena Barnes filed suit against DLN Enterprises, Inc. (“DLN”), owner of Hank & Jerry’s Tavern (the “Tavern”) in Rockdale County, as well as DLN’s sole shareholder, Richard Smith, to recover for injuries she sustained after being involved in a car accident with an intoxicated patron of the Tavern. Barnes brought claims pursuant to Georgia’s dram shop law, OCGA § 51-1-40, as well as claims for negligent training and supervision, and for punitive damages. Smith moved for summary judgment on the ground that there was no basis to pierce the corporate veil to find him personally liable for torts allegedly committed by DLN. The trial court granted summary judgment to Smith, and Barnes appeals, contending that her claims for negligent training and supervision provide a basis to hold Smith individually liable. We disagree and, accordingly, affirm.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Citation omitted.) Agnes Scott College v. Clark, 273 Ga. App. 619, 620 (616 SE2d 468) (2005).

So viewed, the record shows that on November 19, 2012, Cyrus Scott Knight was briefly at the Tavern in the afternoon, when he drank a beer and a Jagermeister shot. He returned to the Tavern around 11:00 p.m. and drank half of a beer and about one-and-a-half “Jager bomb” drinks.

The night bartender was the supervisor of the Tavern on the night of the accident. She noticed that Knight’s eyes were glossy, and he was belligerent. The bartender unsuccessfully tried to take Knight’s keys, offered to call him a cab, and offered to drive him home. She locked the front door to attempt to keep Knight from leaving, but saw another patron let Knight out after he became increasingly belligerent. Knight told the bartender that he was going to nap in his car, and she believed him, but then she heard his car drive away. Even though she knew Knight should not be driving, the bartender did not call the police before or after Knight left the Tavern because she knew him personally and did not want him to get in trouble with the law.

After leaving the tavern, Knight’s vehicle struck Barnes’s vehicle on 1-20. Barnes’s vehicle overturned, and she was seriously injured. Barnes subsequently filed suit against DLN and Smith, alleging that Smith negligently trained and supervised the Tavern’s employees. Smith moved for summary judgment on the ground that no evidence supported piercing the corporate veil and allowing Barnes to sue him personally Barnes responded that her claims for negligent training and supervision provided grounds to impose personal liability on Smith separate and apart from piercing the corporate veil. The trial court granted summary judgment to Smith, and this appeal ensued.

1. Barnes argues that the corporate veil does not shield Smith from personal liability for negligently training employees of the Tavern. We disagree.

Although this Court has recognized that generally an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, we have also held that this rule is inapplicable to claims against corporate officers involving negligent training of corporate employees because a corporate officer’s failure to properly train an employee does not constitute sufficiently direct participation in a tort leading to a plaintiff’s injuries. Beasley v. A Better Gas Co., 269 Ga.App. 426, 429 (2) (604 SE2d 202) (2004); see also Dempsey v. Southeastern Indus. Contracting Co., 309 Ga.App. 140, 144 (3) (709 SE2d 320) (2011) (“mere fact that an injury occurred during a period when [a corporate officer] was responsible for employee training and dispatch is not sufficient to support an inference that the injury was caused by some actionable negligence on [the corporate officer’s] part”) (citation and footnote omitted). In this case, Barnes sought to do precisely this. Consequently, the trial court properly granted summary judgment to Smith on Barnes’s negligent training claim.

2. Barnes also contends that summary judgment to Smith was improper on her negligent supervision claim. We disagree.

“For an employer to be held liable for negligent supervision, there must be sufficient evidence to establish that the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff.” (Citation and punctuation omitted.) Novare Group v. Sarif, 290 Ga. 186, 190-191 (4) (718 SE2d 304) (2011); see also Poole v. North Ga. Conference of the Methodist Church, 273 Ga.App. 536, 540 (615 SE2d 604) (2005) (summary judgment appropriate when no evidence that defendant was aware of employee’s improper behavior).

Here, the evidence showed that the bartender who served Knight alcohol the night of the accident was the supervisor of the shift. Barnes has not pointed us to any evidence, however, and we have found none, which demonstrates that Smith knew or should have known that the bartender required additional supervision based on her history of serving alcohol to patrons. Barnes had an obligation to respond to Smith’s motion for summary judgment by pointing to specific evidence giving rise to a triable issue on her negligent supervision claim. See Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). Barnes failed to come forward with such required evidence. Accordingly, Smith was entitled to summary judgment on Barnes’s negligent supervision claim.

3. With regard to Barnes’s punitive damages claim against Smith, the claim “will not lie in the absence of a finding of compensatory damages on an underlying claim.” (Citation omitted.) D.G. Jenkins Homes, Inc. v. Wood, 261 Ga. App. 322, 325 (3) (582 SE2d 478) (2003). Accordingly, the trial court properly granted summary judgment to Smith on this claim.

Judgment affirmed.

McMillian, J., concurs. McFadden, J., concurs specially in Division 1 and fully in Divisions 2 and 3.

McFADDEN, Judge,

concurring specially

I agree that the trial court’s ruling is due to be affirmed, and I concur fully in Divisions 2 and 3 of the majority opinion. But I cannot concur fully in Division 1 because it would adopt dicta from Beasley v. A Better Gas Co., 269 Ga. App. 426 (604 SE2d 202) (2004) and so create an unwarranted exception to the general rule regarding the personal tort liability of corporate officers.

In Beasley, the plaintiff sued a defendant company for wrongful death arising from the negligent installation of a gas line. The plaintiff also sought to hold a corporate officer personally liable for negligent training of the employees who installed the gas line. Id. at 429 (2). The trial court granted summary judgment to the officer on that negligent training claim, and this court affirmed. Id. In doing so, we quoted the general rule that

an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein. Where the evidence is insufficient to pierce the corporate veil[,] the liability of the corporate officers for a tort committed by the corporation is dependent upon separate evidence of direct participation in the tort.

Decided November 18, 2016.

The Lindsey Firm, Stephanie R. Lindsey, for appellant.

Ben F. Windham, for appellee.

Id. (citations and punctuation omitted). We went on to hold that

[i]n this case, [the officer’s] alleged failure to provide proper training to [the employees] is not a sufficiently direct participation in a tort leading to [the alleged] injuries to expose [the officer] to personal liability under Georgia law. Accordingly, the trial court’s grant of [the officer’s] motion for summary judgment must be affirmed.

Id. at 430 (2).

So in Beasley, we simply applied the general rule that a corporate officer “who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein.” Id. at 429 (2). But as referenced in Division 1 of the majority opinion, Beasley also contained dicta stating that

[although an injured party may sustain a claim against a corporation for negligently training an employee, [the plaintiff] identifies no authority, and we have found none, for the proposition that a corporate officer responsible for training procedures may be held liable for an injury to a third party arising out of an alleged failure by the officer to properly train a corporate employee.

Id. at 430 (2) (citations and emphasis omitted). This dicta was not the ultimate basis for the holding in Beasley. Beasley does not grant corporate officers who directly participate in negligent training of employees immunity from the liability to which other defendants would be subject if they engaged in similar conduct. Rather, as noted above, the actual holding in Beasley was premised on application of the general rule quoted above and on this court’s conclusion that the officer in that case had not directly participated in a tort. Likewise, in the instant case, the trial court correctly granted summary judgment to sole shareholder Smith on the negligent training claim brought against him because there is no showing that he directly participated in a tort.

       It does not appear from the record that DLN moved for summary judgment on the claims Barnes asserted against it. Based on the record before us, the trial court did not reach the merits of the claims against DLN. Where the trial court has not ruled on an issue, we will not address it. CDP Event Svcs. v. Atcheson, 289 Ga. App. 183, 187 (2) (656 SE2d 537) (2008). Consequently, nothing in this opinion should be read to preclude Barnes’s claims against DLN.

       Barnes does not argue on appeal that the trial court should have permitted her to pierce the corporate veil to impose individual liability on Smith. Barnes has not argued this position on appeal, and therefore we will not consider it. Headrick v. Stonepark of Dunwoody Unit Owners Assn., 331 Ga. App. 772, 780 (6) (771 SE2d 382) (2015); Court of Appeals Rule 25 (c) (2).


author: Rickman, Judge. BOGGS, Judge,

text:
    A16A1338.
    KETTLE v. THE STATE.
    (794 SE2d 238)
   Rickman, Judge.

Christopher Kettle appeals the trial court’s denial of his motion to suppress evidence obtained after his vehicle was stopped at a roadblock. He contends that his consent to a blood test was not free and voluntary and that the roadblock was unlawful. For reasons that follow, we affirm.

Our task when reviewing a trial court’s ruling on a motion to suppress must be limited in nature. The trial court sits as the trier of fact and when the trial court has made express findings of disputed facts, we must accept those findings unless they are clearly erroneous, construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and generally limit our consideration of the disputed facts to those expressly found by the trial court. Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). With respect to questions of law, we owe no deference to the trial court, and instead, must apply the law ourselves to the material facts. Id. at 750 (2).

The evidence presented at the motion to suppress hearing, construed in favor of the trial court’s factual findings, showed that on May 25, 2014, at “around 2:50 a.m.,” the vehicle Kettle was driving was stopped at a roadblock conducted by the Georgia State Patrol. A corporal with the Georgia State Patrol asked Kettle for his driver’s license and noticed an odor of marijuana coming from the vehicle and that Kettle had a slow pattern to his speech. When asked about the odor of marijuana, either Kettle or his wife stated that he had smoked marijuana earlier that day The corporal asked Kettle to exit the vehicle for field sobriety tests, and Kettle complied. During those tests, the corporal observed that Kettle’s eyes were bloodshot, his pupils appeared to be dilated, and he was unable to maintain his balance. Based on the corporal’s training and experience and his observation of Kettle, he determined that Kettle was under the influence of marijuana to the extent he was a less safe driver.

At that point, the corporal placed Kettle under arrest and read him an implied consent notice, which stated:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your blood under the implied consent law?

After reading him the notice, the corporal asked Kettle if he would submit to a state test of his blood, and Kettle said that he would. The corporal did not threaten Kettle or raise his voice, and Kettle never changed his mind about submitting to the test. Kettle testified that when the corporal asked him about the blood test, he inquired about whether his wife would be able to leave. The corporal asked whether she had “been drinking or doing anything,” to which Kettle replied, “no, sir.” After speaking with Kettle’s wife, the corporal told Kettle that she was going to be free to leave.

1. Relying on Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), Kettle contends that his consent to the blood test was not free and voluntary, and therefore the blood test should have been suppressed.

A suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution. In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.

(Citations omitted.) Williams, 296 Ga. at 819. One of those exceptions is the voluntary consent exception, and “it is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the need for either probable cause or a search warrant.” (Citations omitted.) Id. at 821.

In Williams, the Supreme Court of Georgia recognized that an affirmative response to the implied consent notice does not automatically equate with actual consent to a search within the meaning of the Fourth Amendment. Id. at 821-822. Instead, “when relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” (Citations, punctuation and footnote omitted.) Id. at 821-822.

A “totality of the circumstances” analysis is not new to Georgia courts. A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent. Nor may consent be coerced, by explicit or implicit means, by implied threat or covert force. Other factors to be considered are prolonged questioning!)] the accused’s age, level of education, intelligence and advisement of constitutional rights [.]

(Citations and punctuation omitted.) Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016).

Here, there is no evidence that the corporal used fear, intimidation, threats or lengthy detention to obtain the consent. The evidence shows that it was a civilized encounter — Kettle was very polite the entire time, and the corporal did not raise his voice or threaten Kettle at any point. Kettle does not contend that his age, level of education or intelligence hindered his ability to voluntarily consent. His argument is that he only agreed to the blood test so that the corporal would allow his wife to leave. The evidence shows, however, that the corporal’s willingness to let Kettle’s wife leave was based on the corporal’s conclusion that she was not impaired and not as an inducement for Kettle to submit to the blood test. Based on the totality of the circumstances, we conclude that the State met its burden of proving that Kettle’s consent to submit to a state test of his blood was voluntary See State v. Young, 339 Ga. App. 306 (793 SE2d 186) (2016) (State met its burden of proving that suspect voluntarily consented to breath test under the totality of the circumstances where evidence showed suspect immediately verbally agreed to submit to the requested breath test, and there was no evidence of any coercive circumstances that would undercut the voluntariness of her consent).

2. Kettle contends that the roadblock was unconstitutional because the Georgia State Patrol’s road check policy was not properly limited to a primary purpose other than general crime control.

When a constitutional challenge to a police checkpoint focuses on the sufficiency of the policy under which the checkpoint was implemented, two distinct questions are presented for resolution by a trial court:

(1) Was the police checkpoint at issue implemented pursuant to a checkpoint program that had, when viewed at that programmatic level, an appropriate primary purpose other than general crime control?
(2) If so, was the decision to implement that specific checkpoint made by a supervisor in advance rather than by an officer in the field?

(Punctuation omitted.) Williams v. State, 293 Ga. 883, 888-889 (3) (750 SE2d 355) (2013), quoting Brown v. State, 293 Ga. 787, 799 (2) (e) (750 SE2d 148) (2013). With respect to the first question, which is at issue here, a primary purpose is “appropriate” if it is “both legitimate for law enforcement to pursue and, can be distinguished from general crime control.” (Emphasis in original.) Brown, 293 Ga. at 795 (2) (c), n. 9.

As found by the trial court, the Georgia State Patrol’s policy on roadblocks consisted not only of the 2010 Policy Number 17.05, which provides that “[supervisors will schedule road checks and will identify a primary purpose for the road check such as: to verify driver licenses, insurance, vehicle registration, and vehicle equipment,” but also of Form DPS-206, which provides that Georgia State Patrol troopers can establish and participate in lawfully authorized roadblocks for the legitimate primary purpose of improving driving safety and more specifically to perform routine traffic checks for several listed reasons.

In addition to or in lieu of a written policy, the State may offer other evidence that the primary purpose of a law enforcement agency’s vehicle roadblock program was properly limited, “such as testimony about restrictions being imposed through verbal orders or training.” Williams, 293 Ga. at 892 (3) (b). Here, a lieutenant with the Georgia State Patrol, who was a post commander at the time the roadblock at issue was implemented, specifically testified that Georgia State Patrol policy required that Form DPS-206 be filled out for every roadblock and that the permissible purposes, as shown on the form, were to check: driver’s license, insurance, registration verification, seatbelt compliance, driver impairment, vehicle fitness, vehicle safety/ vehicle safety compliance, location of dangerous felon likely to take designated route, and other. He explained that the use of the “other” category on that form was limited to describing the details of a specific search for a violent felon. The lieutenant also testified that, based on the training he had received and orders he had been given, using a roadblock for general crime deterrence would not be in compliance with Georgia State Patrol roadblock policy and could subject a supervisor to administrative discipline. He further testified that during his time with the Georgia State Patrol (approximately 19 years), a roadblock had never been used for general crime deterrence.

Construed in favor of the trial court’s factual findings and judgment, the evidence showed that the Georgia State Patrol’s roadblock policy allowed routine traffic checks for a specific list of legitimate purposes and that the use of checkpoints for general crime deterrence would be prohibited. Thus, the trial court was authorized to conclude that the State presented adequate proof that the Georgia State Patrol roadblock program, when viewed at the programmatic level, had an appropriate primary purpose other than general crime control. See Moss v. State, 333 Ga. App. 875, 877-878 (777 SE2d 709) (2015) (evidence of preprinted checkpoint log and officer’s testimony regarding possible purposes for checkpoint was sufficient to support trial court’s ruling that primary purpose of checkpoint program was properly limited on programmatic level).

3. Kettle contends that the roadblock was not permissible because the State failed to show that the roadblock was well marked as required by LaFontaine v. State, 269 Ga. 251 (497 SE2d 367) (1998).

In LaFontaine, the Supreme Court of Georgia held:

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

(Citation omitted.) Id. at 253 (3).

Here, the supervisor who made the decision to implement the roadblock, and also participated in the roadblock, testified that he completed a final report after the roadblock was concluded, which shows that four uniformed troopers were present at the roadblock, all qualified in DUI detection, that there were three marked patrol cars using blue lights, and that the officers wore reflective vests. Although the report states that cones were used to mark the roadblock, the supervisor testified that they used LED flares. The supervisor also testified that every car was stopped and the delay to motorists was minimal. The corporal who arrested Kettle testified that there were multiple cars involved in the roadblock and that at least one of the cars had its blue lights illuminated. Although the Kettles testified that they only saw blue lights on an adjacent street, the trial court found that the roadblock was sufficiently identified with uniformed officers, marked vehicles utilizing blue lights, and lighting to direct the flow of traffic.

Construed in favor of the trial court’s factual findings and judgment, the evidence authorized the trial court to conclude that the roadblock was well identified as a police checkpoint as required by LaFontaine, 269 Ga. at 253 (3).

Judgment affirmed.

Miller, P. J., Ellington, P. J., Branch, McMil-lian and Mercier, JJ., concur. Barnes, P. J., McFadden and Boggs, JJ., dissent.

BOGGS, Judge,

dissenting.

I disagree with the majority’s conclusion in Division 2 that the roadblock satisfied constitutional requirements, and therefore respectfully dissent.

The majority holds that the trial court was authorized to conclude that the State presented adequate proof that the roadblock program, when viewed at the programmatic level, had an appropriate primary purpose other than general crime control. But that is only part of the analysis. Our courts “refer to the ‘Edmond[ \ requirement’ or the ‘appropriate primary purpose requirement’ — with ‘appropriate’ understood to mean a primary purpose that is both legitimate for law enforcement to pursue and can be distinguished from general crime control.” (Punctuation omitted; emphasis in original and supplied.) Brown v. State, 293 Ga. 787, 795 (2) (c) n. 9 (750 SE2d 148) (2013).

Here, the record reveals that the Georgia Department of Public Safety’s (“GPS”) written manual did not state a primary purpose on the programmatic level. The manual provides that “fsjupervisors will schedule road checks and will identify a primary purpose for the road check such as: to verify driver licenses, insurance, vehicle registration, and vehicle equipment.” (Emphasis supplied.) This is inadequate to satisfy Edmond because (1) a supervisor determines the primary purpose rather than the GPS at the programmatic level, (2) the primary purpose is determined on a case-by-case basis because it is identified upon the decision to implement a roadblock (“will schedule road checks and will identify”), and (3) the manual provides only an example of a primary purpose (“such as”), and therefore it fails to state definitively and with limitation the primary purpose of the roadblock program. See, e.g., Williams v. State, 293 Ga. 883, 892 (3) (b) (750 SE2d 355) (2013) (the “written checkpoint policy, viewed properly at the programmatic level — what checkpoints are authorized by the policy, rather than what the purpose was for any specific checkpoint — is not limited as the Constitution requires”). In sum, the policy manual did not provide a “primary purpose of the checkpoint program.” (Footnote omitted; emphasis in original.) Brown, supra, 293 Ga. at 796 (2) (d).

To the extent the trial court found in its written order that “the road block was conducted pursuant to the Georgia State Patrol 2010 Policy and was a programmatic approach,” it erred. While the roadblock may have been conducted pursuant to the 2010 policy manual, as explained above, the manual does not set forth GPS’s policy on the programmatic level. The trial court found further that “[t]raffle control is a specific element of that policy” and makes reference to the log form used by the lieutenant for the specific roadblock here. The lieutenant testified that the log form was used for every roadblock. While I agree with the majority (and as the trial court found in its oral ruling) that this log form is some evidence of GPS’s programmatic level roadblock policy, the form itself is open-ended. It contains a space for “other” followed by a blank line, and the lieutenant explained that he had been instructed to use that option only when looking for a dangerous felon, even though “[ljocation of dangerous felon” was already specifically listed as an option on the form, a fact which the majority ignores. There was no other evidence showing that “Other” is limited to a proper purpose. Although the lieutenant testified a roadblock would not be permitted for detecting or deterring crime generally, this evidence does not foreclose the possibility that the GPS could supply another improper purpose under “Other.” Testimony about the purposes for which the roadblock could not be used, does not equate to testimony about the purpose for which the roadblock could be used. Edmond prohibits purposes that are “ultimately indistinguishable from the general interest in crime control.” Edmond, supra, 531 U. S. at 44 (III). In the absence of an explanation of what the “other” purposes may be, we cannot determine whether or not those other purposes are in fact indistinguishable from the general interest in crime control. Just as the trial court stated in its oral ruling that “there could be many other specific reasons that are not random investigation for criminal conduct,” there could also be many other specific reasons that are random investigation for criminal conduct. Without evidence that any programmatic level policy was properly identified and limited, the Edmond requirement is not satisfied. As explained in Brown, Edmond requires a showing of a primary purpose that is both legitimate for law enforcement to pursue and can be distinguished from general crime control. Brown, supra, 293 Ga. at 795 (2) (c) n. 9.

The trial court orally ruled:

I believe that in addition to the specific route concerned involved in a dangerous criminal that there could be many other specific reasons that are not random investigation for criminal conduct. None of those are involved in this case, so it’s not necessary to make that opinion. ... If the policy had specifically addressed and allowed things that clearly are not based upon specific purposes and information, then I would be critical of it, but it does not do so.

Thus, the court found that because this particular roadblock was properly limited, there was no need to provide an opinion as to other purposes not involved in this case. But as explained in Williams, a finding that a particular checkpoint has a primary purpose other than ordinary crime control is not sufficient to satisfy Edmond. Supra, 293 Ga. at 891 (3) (b). The court must conduct an analysis of the programmatic level policy.

The State and the majority cite Moss v. State, 333 Ga. App. 875 (777 SE2d 709) (2015). But the facts in Moss are distinguishable. There, we held that although the written policy was not in the record before us, the State presented some evidence supporting the trial court’s finding that the primary purpose at the programmatic level was properly limited. Id. at 877-878. Specifically, the sergeant’s testimony about the sole purpose for checkpoints, in conjunction with the log form used for the checkpoint in question, satisfied the requirement. The log form in Moss stated under the “Other” box that the checkpoint was established “to ensure driver’s [sic] were complying with all applicable driver’s license and insurance requirements.” Id. Here, however, although an approval form similar to the log in Moss was admitted into evidence, there was no explanation given for the purpose of “Other” outside of the one given by the lieutenant referring to a purpose already listed. He referred only to the written policy: “we adhere to the policy and directives that were given to us.” And when asked “what are the possible — not necessarily in this roadblock, but in general, what are the possible reasons for a roadblock that you were able to check?” the lieutenant repeated the reasons listed on the approval form he filled out for this particular checkpoint. He also responded that there was no verbal policy, only the written policy, and that the written policy was “[their] guidance.” But again, the written manual provided no properly limited programmatic level roadblock policy.

The GPS policy manual on its face does not provide a primary purpose on the programmatic level, and any evidence of the programmatic level purpose provided by the log form was not properly limited. United States Supreme Court and Supreme Court of Georgia precedent requires us to hold that the State failed to satisfy the requirement of Edmond, supra. I would therefore conclude that the trial court erred in denying Kettle’s motion to suppress.

I am authorized to state that Presiding Judge Barnes and Judge McFadden join in this dissent.

Decided November 18, 2016

James W. Smith, for appellant.

D. Parks White, District Attorney, K. Nicole Roddenbery, Assistant District Attorney, for appellee.

       Kettle also contends that the roadblock was not permissible because the supervising officer failed to designate a single primary purpose, which he argues is required by City of Indianapolis v. Edmond, 531 U. S. 32 (121 SCt 447, 148 LE2d 333) (2000). In Edmond, the United States Supreme Court determined that the primary purpose of the Indianapolis checkpoint program at issue was ultimately indistinguishable from the general interest in crime control, and therefore the checkpoints violated the Fourth Amendment. Id. at 48 (III). The Court cautioned “that the purpose inquiry in this context is to be conducted only at the programmatic level....” Id. We fully addressed the primary purpose issue at the programmatic level in Division 2, and Kettle’s contention presents nothing further for our review.

        City of Indianapolis v. Edmond, 531 U. S. 32 (121 SCt 447, 148 LE2d 333) (2000).

       The majority states that the lieutenant’s explanation for the use of “other” was “limited to describing the details of a specific search for a violent felon.” But this is an overstatement of his testimony. The lieutenant testified: “The only ‘other’ that I can think of was, you know, when we are looking for Jamie Hood [a fugitive] or a violent felon.” He explained further, “It’s the only time that I ever used ‘other,’ and the only time I was ever instructed to use ‘other’ was in times of looking for dangerous felon.”

       I note that in June 2014, following the Supreme Court of Georgia’s 2013 decisions in Brown and Williams, and prior to the 2015 hearing on Kettle’s motion to suppress, the GPS revised its policy manual. The manual now provides under “Roadblocks”:
      The supervisor must implement the roadblock for a legitimate primary purpose, which shall be to monitor and check driver’s licenses, driver condition, vehicle registration, vehicle equipment and other requirements of the Georgia motor vehicle and traffic code or to locate a suspected criminal likely to be in the area. The primary purpose shall not be general crime detection .

      (Emphasis supplied.) The “Policy” statement was also revised and now provides:
      The Georgia Department of Public Safety shall conduct roadblocks to protect the citizens of the State of Georgia and to monitor and check driver’s licenses, driver condition, vehicle registrations, vehicle equipment and other requirements of the Georgia motor vehicle and traffic code and to locate a suspected criminal likely to be in the area. Roadblocks shall be conducted in a manner that safely maximizes available personnel, promotes highway safety and provides the greatest public benefit. Roadblocks shall not be established for the general purpose of crime control or deterrence.

      (Emphasis supplied.)


author: McFADDEN, Judge.

text:
    A16A1339.
    WARD v. THE STATE.
    (794 SE2d 246)
   McFADDEN, Judge.

After a jury trial, Lavalis Ward was convicted of criminal attempt to commit armed robbery, two counts of burglary, possession of a firearm during the commission of a crime, possession of a tool for commission of a crime, possession of a controlled substance, and possession of a firearm by a convicted felon. Ward appeals, claiming that his trial counsel was ineffective; however, Ward has failed to show that his counsel’s performance was both deficient and prejudicial. Ward also challenges the trial court’s admission of certain evidence, but he has not shown that the court abused its discretion in its evidentiary rulings. Finally, Ward contends that the attempted armed robbery and burglary offenses should have been merged for purposes of sentencing. We agree that the two burglary counts, which were based on a single illegal entry into a building, should have been merged; but the attempted armed robbery and burglary offenses were not based on the same conduct and thus properly were not merged for sentencing. Accordingly, we affirm in part, vacate in part, and remand for resentencing on the burglary counts.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence.” Hall v. State, 335 Ga. App. 895 (783 SE2d 400) (2016) (citation omitted). So viewed, the evidence shows that on June 19, 2011, at approximately 2:30 in the morning, Ward and an accomplice went to the victim’s apartment to steal money that they had learned was supposedly hidden under a mattress. Ward forced his way into the apartment with a handgun while his accomplice waited outside. As Ward ransacked the apartment looking for the money, he threatened and hit the victim with the gun. After failing to find the money, Ward and his accomplice fled. The state also introduced evidence of Ward’s prior convictions arising from a similar home invasion.

1. Tape recording.

Ward contends that the trial court erred in allowing the state to play a tape recording because it contained statements from a detective that invaded the jury’s province by addressing an ultimate issue of fact. However, as Ward notes in his brief, this objection to the tape recording was not raised at trial; rather, his attorney raised only a Miranda objection to the tape. Because no ultimate issue objection to the evidence was raised at trial, Ward “may not now raise it for the first time on appeal. Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” Holmes v. State, 271 Ga. App. 122, 123 (1) (608 SE2d 726) (2004) (citation and punctuation omitted). See also Batten v. State, 295 Ga. 442, 444 (2) (761 SE2d 70) (2014) (ultimate issue objection to investigator’s testimony was not preserved for appellate review).

2. Song lyrics.

Ward contends that the trial court erred by allowing admission of redacted lyrics of a rap song he had written, arguing that the lyrics were irrelevant and unduly prejudicial. “The exclusion of evidence that is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” Taylor v. State, 297 Ga. 132, 135 (3) (772 SE2d 630) (2015) (citation and punctuation omitted). Both this court and our Supreme Court have held that a trial court does not abuse its discretion in admitting evidence of a defendant’s written lyrics when the evidence is relevant to some issue in the case. See Taylor, supra (no error in admitting rap lyrics referencing a particular type of gun); Castillo v. State, 281 Ga. 579, 584 (7) (a) (642 SE2d 8) (2007) (no error in admitting song lyrics suggesting defendant might be inclined to violence); Thomas v. State, 270 Ga. App. 181, 183 (2) (606 SE2d 275) (2004) (no error in admitting song lyrics suggesting that defendant might be inclined to engage in violent encounter with police). Here, the state contended, and presented evidence showing, that Ward had attempted to intimidate various witnesses from testifying against him in this case. The rap lyrics in question referenced violence toward witnesses and thus were relevant to the issue of witness intimidation. Accordingly, “[t]he trial court did not abuse its discretion by admitting this relevant evidence.” Taylor, supra (citation omitted).

3. Drug paraphernalia.

Ward claims that the trial court erred in allowing the state to introduce evidence of drug manufacturing paraphernalia found during a search of his home because it impermissibly placed his character in issue. But even if we assume, without deciding, that the court erred in allowing the evidence,

the error [was] harmless because ... the evidence of [Ward’s] guilt[, including the victim’s eyewitness identification of Ward, the accomplice’s incriminating testimony, and the similar transaction,] was overwhelming and it is therefore highly probable that the admission of the challenged [evidence] did not contribute to the verdict. [Cit.]

Johnson v. State, 292 Ga. 785, 789 (4) (741 SE2d 627) (2013) (any error in allowing evidence of defendant’s involvement in a drug transaction for which he was not on trial was harmless due to overwhelming evidence of guilt). Accord Ingram v. State, 232 Ga. App. 802, 804 (503 SE2d 70) (1998) (any error in admitting evidence of defendant’s commission of independent crime was “harmless given the overwhelming evidence of [his] guilt”).

4. Ineffective assistance of counsel.

To prevail on his claim of ineffective assistance of counsel, Ward

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Ward] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation omitted). Ward has failed to show that his trial counsel’s performance was both deficient and prejudicial.

(a) Motion for directed verdict of acquittal.

Ward complains that his trial counsel was ineffective in moving for a directed verdict of acquittal on the armed robbery count, theorizing that the motion prompted the state to request a jury charge on attempted armed robbery as a lesser offense. At the motion for new trial hearing, counsel testified that his reason for the motion for a directed verdict of acquittal was the lack of evidence showing that anything was taken from the victim. When asked about the state’s ability to request attempted armed robbery as a lesser included offense, counsel responded, “Well, I guess they were free to assert any theory they had that was supported by the evidence.”

Generally, decisions on whether to raise, and how to argue, motions are matters of trial strategy Taylor v. State, 337 Ga. App. 486, 492 (4) (a) (788 SE2d 97) (2016); Minor v. State, 328 Ga. App. 128, 142 (8) (b) (761 SE2d 538) (2014). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” Smith v. State, 335 Ga. App. 742, 746 (3) (782 SE2d 824) (2016) (citation and punctuation omitted). Moreover,

[effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.

Powell v. State, 198 Ga. App. 509, 511-512 (1) (402 SE2d 108) (1991) (citations and punctuation omitted).

Here, trial counsel’s decision to move for a directed verdict of acquittal due to insufficient evidence was certainly a reasonable strategy, especially since the jury did not find Ward guilty of the very offense that was the subject of that motion. The mere

fact that [Ward] now finds fault with trial counsel’s strategy does not require a finding that he received deficient representation. [Cit.] Given [Ward’s] failure to demonstrate error by the trial court, we will not disturb its denial of [his] motion for new trial based on ineffective assistance of counsel. [Cit.]

Zapata v. State, 291 Ga. App. 485, 486 (662 SE2d 271) (2008) (rejecting claim that trial counsel was ineffective in moving for a directed verdict of acquittal because such motion allowed the state to reopen the evidence). See also Hicks v. State, 337 Ga. App. 567, 571 (4) (788 SE2d 502) (2016) (finding that counsel’s strategic decision to move for a directed verdict did not amount to ineffective assistance),

(b) Bulletin.

Ward contends that his trial counsel was ineffective in failing to raise an improper character evidence objection to a police officer’s testimony that there was a bulletin with Ward’s information on it in the police station. However, even if such a character objection would have been appropriate, Ward “has not met his burden of showing prejudice. The overwhelming evidence of his guilt forecloses the reasonable probability that the trial result would have been different, if trial counsel had objected to the testimony.” Andemical v. State, 336 Ga. App. 661, 667 (4) (a) (786 SE2d 238) (2016) (citation omitted).

(c) Similar transaction testimony.

Ward claims his trial counsel was ineffective in failing to object to hearsay during a detective’s testimony about the similar transaction. However, in addition to the detective’s testimony, the state also introduced a certified copy of his convictions arising from the prior incident and the testimony of his accomplice in that incident. And as noted above, the evidence of Ward’s guilt in the instant case was overwhelming. Consequently,

[pjretermitting whether trial counsel’s performance was deficient for failing to object on hearsay grounds to the detective’s testimony at trial, [Ward] has failed to establish a reasonable probability that, but for counsel’s [lack of an] objection to the testimony in question, the result of the proceeding would have been different.

Jones v. State, 329 Ga. App. 478, 483 (4) (765 SE2d 657) (2014) (citations omitted).

(d) Third party and co-indictee statements.

Ward claims that his trial counsel was ineffective in failing to object to statements made by third parties in a recorded telephone call and to statements of a co-indictee who disappeared before trial. But Ward “does not point to any specific [statements by third parties or the co-indictee] to which his trial counsel should have objected[.]” Gipson v. State, 332 Ga. App. 309, 322 (8) (d) (772 SE2d 402) (2015). Accordingly, these claims provide no basis for finding ineffective assistance of counsel. See Stokes v. State, 281 Ga. 825, 834 (8) (e) (642 SE2d 82) (2007) (no ineffective assistance shown where appellant failed to cite specific deficiencies); Conway v. State, 281 Ga. 685, 690 (3) (642 SE2d 673) (2007) (no ineffective assistance where appellant failed to show specific instances of counsel’s alleged failure to prepare for trial); Bennett v. State, 289 Ga. App. 110, 114 (3) (657 SE2d 6) (2008) (appellant failed to identify witness whom he claimed counsel should have called at trial).

(e) Detective’s recorded statements.

Ward argues that his trial counsel was ineffective in failing to raise relevance and ultimate issue objections to statements made by a detective on a recording which indicated the detective’s belief that his investigation pointed to Ward’s guilt. But even assuming such objections would have been appropriate, “given the overwhelming evidence of guilt, we cannot say [these brief statements] in reasonable probability changed the outcome of the trial; accordingly, [Ward] suffered no prejudice from trial counsel’s failure to object to this [evidence].” Crankshaw v. State, 336 Ga. App. 700, 703 (3) (d) (786 SE2d 245) (2016) (citation and punctuation omitted).

5. Merger.

Ward argues that the trial court should have merged the attempted armed robbery and the two burglary offenses for sentencing because all three counts were based on the same conduct. We agree that the two counts of burglary should have been merged for sentencing; however, the trial court correctly ruled that the attempted armed robbery count did not merge with either of the burglary offenses.

(a) Burglary counts.

The two counts of burglary upon which the jury found Ward to be guilty were based on the same unlawful entry into the victim’s house, but one count was predicated on the intent to commit a theft and the other was predicated on the intent to commit an aggravated assault. The trial court imposed separate sentences for each burglary count. However, “[w]here one course of conduct violates one criminal statute in several ways described in the statute, a defendant is guilty of only one crime. [Cits.]” Spears v. State, 296 Ga. 598, 601-602 (2) (769 SE2d 337) (2015). Since Ward’s one entry into the victim’s house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences and instead should have merged the burglary counts for sentencing. See Andrews v. State, 328 Ga. App. 344, 348 (2) (a) (764 SE2d 553) (2014) (finding two burglary counts should have merged because only one burglary occurred where defendant entered building with dual intent of committing theft and rape). Compare Spears, supra (two separate entries authorized separate sentences for two burglary counts). We therefore vacate the erroneous burglary sentences and direct the trial court, on remand, to merge the two burglary counts for sentencing. See Andrews, supra.

(b) Attempted armed robbery.

Contrary to Ward’s argument, the trial court did not err in failing to merge the attempted armed robbery with the burglary counts for sentencing.

While an accused may be prosecuted for more than one crime arising out of the same criminal conduct, he may not be convicted of more than one crime arising out of the same criminal conduct where one crime is included in the other. OCGA § 16-1-7 (a) (l).Acrime is included in the other when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6. With respect to subsection (1), the “required evidence test” is utilized to determine whether multiple convictions are precludedbecause one of the crimes was established by proof of the same or less than all the facts that were required to establish the other crime. . . . [Tjhat [required evidence] test is exclusive to a merger analysis under OCGA § 16-1-6 (1); however, there are other circumstances in which a merger analysis will not end with the required evidence test.

Regent v. State, 299 Ga. 172, 175 (787 SE2d 217) (2016) (citations, punctuation and emphasis omitted).

In the instant case, the attempted armed robbery and burglary offenses were not established by proof of the same facts and thus were not included offenses.

Under Georgia law, a person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. Aperson commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. Thus, the elements of burglary and attempted armed robbery and the culpable mental states required of these crimes are different,.

Culbreath v. State, 328 Ga. App. 153, 156-157 (2) (a) (761 SE2d 557) (2014) (citations omitted). Because the burglary and attempted armed robbery offenses in this case “require[d] proof of at least one fact different from the others[,] these crimes did not merge.” Id. at 157 (2) (a). See also Crankshaw, supra at 704 (4).

Moreover, Ward has not shown and we do not find any further circumstances under which the attempted armed robbery and burglary offenses in this case should have merged. Compare Regent, supra at 175-176 (finding that the charged aggravated assault and aggravated battery offenses should have merged because they differed only in the seriousness of the injury to the victim). Thus, even though the trial court should have merged the burglary counts, as discussed above, the trial court did not err in refusing to merge the attempted armed robbery with the burglary counts for sentencing.

Decided November 18, 2016.

Margaret E. Heinen, for appellant.

Herbert M. Poston, Jr., District Attorney, F. Lee Miles, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Miller, P. J., concurs. McMillian, J., concurs in judgment only.