text:
    A11A2387.
    DEAN v. THE STATE.
    (722 SE2d 436)
   McFADDEN, Judge.

Derrick V Dean appeals his conviction of aggravated battery. Dean argues that the evidence does not support his conviction, that the trial court erred in instructing the jury and that he received the ineffective assistance of trial counsel. Although we find that the evidence was sufficient to support the conviction, we conclude that the trial court erred in instructing the jury and that the error was not harmless. Therefore, we reverse Dean’s conviction. We accordingly do not reach Dean’s claim of ineffective assistance of trial counsel.

1. Dean argues that the evidence is insufficient to support his aggravated battery conviction. “On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain [whether] the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009).

Viewed in this light, the evidence shows that at the time of the incident, Cynthia Belton and Dean were friends who lived together. Belton asked Dean to straighten up a closet and to leave the apartment. Dean approached Belton while she was washing in the bathroom and hit her “on [her] right side with a belt.” That made Belton angry, so she retrieved a stick they kept under the bed for protection, intending to use it to chase Dean out of the apartment. Dean walked away toward the kitchen, but Belton followed him, yelling at him and threatening him with the stick. Dean grabbed the stick from Belton, so she picked up her cane and hit Dean on his hand. Dean then hit Belton on the left hand with the stick. Thereafter, she could not hold anything in her left hand.

A week later, Belton went to the emergency room. A physician’s assistant from the emergency room testified that Belton’s arm was fractured near the hand. Pursuant to hospital protocol, hospital employees called the police. Belton spoke with a police officer, who signed warrants for Dean’s arrest. Dean was arrested two days later.

Temika Dean, Dean’s niece and a friend of Belton, saw Dean on the day of the incident. Dean’s hand and arm were swollen and discolored, and there was a knot on his hand. A certified nursing assistant from the jail testified that Dean had a small knot on the top of his hand but that an x-ray showed that he had no broken bones.

The aggravated battery statute provides that “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another ... by rendering a member of. . . her body useless. . . .” OCGA § 16-5-24 (a). The evidence authorized the jury to find that Dean caused bodily harm to Belton by rendering her left hand useless by fracturing her arm near the hand. This evidence is sufficient to support Dean’s conviction for aggravated battery. See Ganas v. State, 245 Ga. App. 645, 646-647 (1) (b) (537 SE2d 758) (2000).

2. Dean argues that the trial court erred by giving a jury instruction requested by the state. The court charged the jury:

Whenever law enforcement responds to an incident in which an act of family violence has been committed, the officer shall not base a decision of whether to arrest and charge a person on specific consent of the victim or on a request by the victim solely or on consideration of the relationship of the parties. No other officer investigating an incident of family violence shall threaten, suggest or otherwise indicate the arrest of all parties for the purpose of discouraging requests for law enforcement intervention.
Where complaints of family violence are received from two or more opposing parties, the officer shall evaluate each complaint separately to attempt to determine who was the primary aggressor. If the officer determines one of these parties was the primary physical aggressor, the officer shall not be required to arrest any other person believed to have committed an act of family violence during the incident.
In determining whether a person is the primary physical aggressor, an officer shall consider prior family violence involving either party; the relative severity of the injuries inflicted on each person; the potential for future injury; and whether or not one of the parties acted in self-defense.

The charge was based on OCGA § 17-4-20.1 (a) and (b). The state requested the charge to respond to Dean’s cross-examination of Belton, specifically when counsel asked her if she were being prosecuted for hitting Dean with her cane.

Dean argues that the charge was erroneous because it invaded the province of the jury and was not based on the evidence. The charge, he argues, implied that the police had conducted an investigation that led to a determination that Dean was the primary aggressor when there was no evidence of an investigation or such determination.

“[J]ury charges must be tailored to the evidence presented in the case.” (Citation omitted.) Swain v. State, 251 Ga. App. 110, 115 (2) (552 SE2d 880) (2001). Further,

instructions, even though abstractly correct, should not be given unless authorized by the evidence and when such an unauthorized instruction is given, if it should be confusing or misleading to a jury, a new trial will be required. Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the evidence of record, we cannot say as a matter of law that the charge was neither confusing nor misleading.

(Citation and punctuation omitted.) Strobhert v. State, 241 Ga. App. 354, 356 (1) (526 SE2d 863) (1999).

We agree that the charge was not based on the evidence. The state presented no evidence that Dean made a report about the incident, so the portion of the charge discussing “complaints of family violence . . . from two or more opposing parties” is not supported. More importantly, the state did not present any evidence that any law enforcement officer made a determination that Dean was the primary aggressor. Although the officer who took Belton’s report at the hospital testified at trial, he did not give any testimony about determining who was the primary aggressor.

We cannot say that is “highly probable that the error did not contribute to the judgment.” (Punctuation omitted.) Hammond v. State, 289 Ga. 142, 144 (2) (710 SE2d 124) (2011). Dean’s defense was that he acted in self-defense. Belton admitted that she hit Dean with her cane, and two witnesses testified about his injury. And, pursuant to Dean’s request, the court charged the jury on self-defense. But the court also charged the jury that a person is not justified in using force if that person was the aggressor. See OCGA § 16-3-21 (b) (3). Whether a party is the primary aggressor or “merely defending himself [is] a question of credibility and justification for resolution by the factfinder.” Yarnell v. State, 300 Ga. App. 591, 592 (685 SE2d 337) (2009). The erroneous jury instruction could have misled the jury to conclude that the police officer did not arrest Belton because he had determined that Dean was the primary aggressor, thereby undermining Dean’s claim of self-defense. This instruction was not authorized by the evidence, could have misled the jury, and, consequently, “a new trial [is] required.” Strobhert, 241 Ga. App. at 356 (1). Because the evidence was sufficient to support the conviction, the state may retry Dean. Williamson v. State, 300 Ga. App. 538 (685 SE2d 784) (2009).

Decided January 26, 2012.

Jonathan P. Waters, for appellant.

Howard Z. Simms, District Attorney, Pamela White-Colbert, John A. Regan, Gregory W. Winters, Assistant District Attorneys, for appellee.

3. In light of our reversal of Dean’s conviction, we do not reach his claim of ineffective assistance of trial counsel.

Judgment reversed.

Phipps, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Mikell, Chief Judge.

license: Public Domain

text:
    A11A1864, A11A1865.
    SEVOSTIYANOVA v. THE STATE (two cases).
    (722 SE2d 333)
   Mikell, Chief Judge.

In July 2007, appellant Ekaterina Sevostiyanova was involved in two separate traffic incidents during the course of a single week. As to the first incident, she was convicted following a jury trial on June 15-16, 2009, of two counts of violation of OCGA § 40-6-271 (duty of a driver on striking an unattended vehicle). The second incident resulted in her conviction (after a jury trial on June 8-9, 2009) of hit-and-run (OCGA § 40-6-270) and following too closely (OCGA § 40-6-49). Following a consolidated hearing, the trial court denied her motion for new trial in both cases. Acting pro se, she appeals in Case Nos. A11A1864 (concerning the first incident) and A11A1865 (as to the second incident), asserting insufficiency of the evidence, ineffective assistance of counsel, and other errors. We have consolidated these appeals for disposition, and we affirm in both cases.

As a threshold matter, we address the deficiencies in Sevosti-yanova’s appellate briefs, which fail to comply with our Rule 25. We note that appellant’s election to proceed with her appeal pro se does not excuse her from compliance with the substantive and procedural requirements of the law. She has enumerated 18 errors in Case No. A11A1864 and 16 errors in Case No. A11A1865, with several enumerations containing a number of subdivisions; and in her argument she raises a number of other alleged errors. Many of her claims of error are not supported by citations to the record or to authority, nor are they supported by reasoned argument; therefore, in accordance with Court of Appeals Rule 25 (c) (2), they are deemed abandoned, as set forth below. Her failure to adhere to our rules has hampered our ability to ensure that all her alleged errors are addressed; nonetheless, we will review her claims of error to the extent we can, “based on what we perceive [her] arguments to be.”

On appellate review of a criminal conviction,

we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility.

To establish a claim of ineffective assistance, Sevostiyanova must satisfy a two-part test. She “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [her] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” In order to show that counsel’s performance was deficient, appellant “must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.” Further, “[fjailure to satisfy either component of this test is fatal to an ineffectiveness claim[; and] the court need not address both components if the defendant has made an insufficient showing on one of them.” On appellate review of the trial court’s ruling, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Case No. A11A1864

1. Sevostiyanova challenges the sufficiency of the evidence to support her convictions under OCGA § 40-6-271. OCGA § 40-6-271 (a) requires a driver, upon striking an unattended vehicle, to stop and provide his or her name and address, as well as that of the owner of the striking vehicle, to the owner or operator of the vehicle struck, either “then and there” or by leaving a note conspicuously placed on the struck vehicle. Subsection (b) of this Code section makes it a misdemeanor to fail to provide this information.

Properly viewed, the record reflects that on July 14, 2007, appellant struck two separate unattended vehicles in the parking lot of an Atlanta Bread Company restaurant: a BMW driven by Davilon Hunter and a Ford F-150 pickup truck driven by Allen Powers. Both victims testified at trial that they saw the collisions occur through the restaurant window; that they ran outside to find that their vehicles had been damaged; and that they saw the driver of the striking vehicle leave the scene without speaking to either of them or leaving a note and without providing any contact information. Powers gave the license tag number of the offending vehicle to the Cobb County police officer who responded to the scene. The police later determined that the tag was issued to a Wade Ford rental car, rented on that day to appellant. Sevostiyanova testified at trial, admitting that she was driving in the parking lot at the time in question, but denying that she collided with any other vehicles.

Sevostiyanova appears to argue that the evidence is insufficient because her version of the events differs from that of the state’s witnesses. However, the jury chose to believe the state’s witnesses, which it was authorized to do. “It was the jury’s role to assess the credibility of the witnesses, resolve any conflicts in the evidence, and arrive at a determination of the facts.” The evidence adduced at trial and summarized above, viewed in the light most favorable to the verdict, was amply sufficient for a rational finder of fact to find Sevostiyanova guilty beyond a reasonable doubt of the charges against her, under the standard set forth in Jackson v. Virginia.

2. Sevostiyanova contends that her convictions should be reversed because certain evidence, including photographs of her rental car, the BMW, and the pickup truck, was not introduced at trial. She additionally claims error because evidence of a severe “microburst” rainstorm was not introduced. These enumerations present nothing for our review. Sevostiyanova has not shown that this material was ever offered in evidence at trial or that the trial court ruled as to its admissibility. This Court may not consider on appeal matters that were neither raised nor ruled on below. “We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.”

Moreover, we reject appellant’s claim that her trial counsel performed deficiently in failing to introduce this allegedly exculpating evidence. At the new trial hearing, trial counsel testified that she consulted extensively with Sevostiyanova before and during the trial and that the exculpatory evidence described by appellant was unavailable at the time of trial (the photographs of the truck’s tailgate); was irrelevant to the issues at trial (the photographs of the rental car, taken only after the second incident, not after the incident in the instant case); or was actually harmful to the defense (the expert witness placed the microburst far from the location at issue).

[DJecisions regarding . . . what evidence to introduce are matters of trial strategy and tactics and are within the exclusive province of counsel after consultation with the client. Indeed, such tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.

The trial court did not err in determining that counsel’s performance fell “within the broad range of reasonable professional conduct” and did not constitute ineffective assistance of counsel.

3. Appellant asserts that the nolle prosequi of Count 2, which was entered as part of a negotiated plea on June 25, 2008, could not be reopened and that she could not be tried on this count after she withdrew her nolo plea. We disagree.

The collisions at issue here occurred on July 14, 2007. Sevosti-yanova was subsequently charged by accusation with two misdemeanor counts of striking an unattended vehicle (Count 1, as to the BMW; and Count 2, as to the Ford F-150). As part of a negotiated plea deal, Sevostiyanova pled nolo contendere on Count 1 and the state nol prossed Count 2. On March 9, 2009, the court permitted her to withdraw her nolo plea, and the case was put on the jury trial calendar for April 9, 2009. On June 15, 2009, the morning of trial, the parties amended the original accusation to strike out the “NP” (nolle prosequi) next to Count 2 and to show that Sevostiyanova “pleads not guilty to Counts one and two June 15, 2009.” The case then proceeded to trial before a jury on June 15-16, 2009. Thus, the state could prosecute Count 2 under the amended accusation, because it was amended before the expiration of the two-year statute of limitation.

Carlisle v. State, cited by appellant, does not require a contrary result. In that case, the defendant entered a plea to four counts of an indictment, and the state nol prossed seven other felony counts. Subsequently, the defendant successfully challenged the voluntariness of her plea in a habeas proceeding. Our Supreme Court ruled that the state could not revive the nol-prossed counts because they were outside both the statute of limitation and the saving provision of OCGA § 17-3-3. The Court explained that the state is “permit-t[ed] to return a new indictment within the applicable statute of limitation, or within six months after the entry of the nolle pros if that occurs later” In the case before us, the accusation was amended within the statute of limitation. This enumeration fails.

4. Sevostiyanova contends that her convictions should be reversed because she was never formally arraigned on the two misdemeanor counts of striking an unattended vehicle. However, the record shows that Sevostiyanova waived formal arraignment as to these charges on June 11, 2008. After the accusation was amended on June 15, 2009, Sevostiyanova entered a “not guilty” plea to Counts 1 and 2, thus again waiving formal arraignment. Moreover, Sevostiyanova voiced no objection to the alleged lack of arraignment before or at trial. “Any error in the lack of arraignment was waived by [her] failure to raise the issue prior to verdict.” Even if there had been no waiver, “procedural errors occurring at the arraignment stage are subject to a harmless error analysis,” and appellant has failed to show harm in this case. As trial counsel testified at the hearing on the motion for new trial, she and Sevostiyanova were well aware of and discussed the charges against her. This enumeration presents no basis for reversal.

5. Sevostiyanova asserts reversible error in the trial court’s denial of her request for a continuance, made on the day of trial. “A motion for continuance is addressed to the sound discretion of the trial court, OCGA § 17-8-22, and the trial court’s exercise of discretion will not be reversed on appeal without a showing of manifest abuse of that discretion.” We find no abuse of discretion here.

(a) Appellant sought the continuance on the ground that her expert witness, whom she expected to testify to weather conditions at the time in issue, was not available and she needed to find another witness. The trial court denied the motion, noting that the charges were long-standing; the case had been on the trial calendar for months; and the state’s witnesses were present and ready to testify. In light of the fact that Sevostiyanova’s trial counsel was appointed some months before the trial, the record does not demand a finding that she exercised diligence. Moreover, appellant made no showing as to the expert’s identity, no proffer of his expected testimony, and no showing of how that testimony would benefit her. “Where there is no indication that a continuance would have benefitted the defendant, there is no showing of necessity and no abuse of discretion.”

(b) Appellant argues that her counsel provided ineffective assistance by not filing a written motion for continuance, both on the ground of the necessary expert witness and on the ground that the nolle prosequi had been opened as to Count 2. However, she has not shown that a written motion would have resulted in the grant of the continuance. Thus, she has not shown ineffective assistance in this regard. And as discussed above, the trial court did not abuse its discretion in denying counsel’s motion for continuance.

(c) Appellant further appears to argue that her trial counsel provided deficient representation by not placing the expert witness under subpoena. For the reasons discussed in Division 2 above, counsel’s decision not to.call this witness falls within the category of reasonable trial tactics and strategy and therefore does not support a claim of deficient performance, nor has appellant made any attempt to proffer this witness’s testimony or to show that the absence of this testimony prejudiced the defense.

6. Sevostiyanova asserts that the presence of state witnesses Hunter and Powers in the courtroom during pre-trial argument on her motion in limine, in which she attempted to exclude a statement made by the investigating officer in the companion case, was prejudicial and constituted reversible error. Sevostiyanova has cited no authority in support of this enumeration, however, nor has she directed us to any evidence in the record which would indicate that the witnesses were not truthful on the stand or that their testimony was in any way influenced by their presence in the courtroom at this time. The error, if any, has been abandoned, as provided in Court of Appeals Rule 25 (c) (2).

7. Without citing authority, appellant asserts that reversible error occurred when the responding officer gave false testimony. However, she cites no affirmative evidence showing that the officer perjured himself while testifying. Thus, she has failed to meet the standard for setting aside a verdict resting on perjury. Further, her trial counsel thoroughly cross-examined the officer at trial. This enumeration is meritless.

8. Sevostiyanova contends that the sentence she received upon her conviction constituted cruel and unusual punishment in violation of the federal and state constitutions. Appellant has not shown that this error was raised in the trial court; therefore, she has waived appellate review of this alleged error, for the reasons set forth in Division 2 above. Even had review not been waived, however, it is without merit. The trial judge’s sentence in this case was within the limits of the law, and thus it will not be set aside on the ground that the sentence imposed is excessive and the punishment cruel and unusual.

9. Sevostiyanova challenges the trial court’s failure to give her requested charge on accident under OCGA § 16-2-2. She argues that the collisions were the result of “accident” because of the severe rainstorm that allegedly occurred at that time. However, the defense of accident is an affirmative defense, which “is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it.” Thus, “if a defendant does not admit to committing any act which constitutes the offense charged, [she] is not entitled to a charge on the defense of accident.” In the case before us, Sevostiyanova repeatedly denied striking any vehicle in the Atlanta Bread Company parking lot. The trial court did not err in refusing to give the requested charge on accident.

10. Appellant asserts error in the trial court’s denial of her motion for new trial and related motions. She lists a number of instances of alleged error in the trial court’s conduct of the hearing on her motion for new trial, but she has not cited any authority or made any rational argument in support of this enumeration of error, in contravention of Court of Appeals Rule 25 (c) (2). We therefore deem this enumeration of error abandoned.

11. Sevostiyanova asserts that the trial court erred in rejecting her claim of ineffective assistance of counsel. However, she has failed to meet either prong of the ineffective assistance test. Therefore, this enumeration fails.

(a) Sevostiyanova claims that her trial counsel, Victoria Aronow, was inexperienced and unqualified to defend her in a criminal trial. The record does not support this contention. Aronow had practiced as a prosecutor for more than nineteen years and as a defense attorney for more than five years. Further, trial counsel’s experience or lack thereof does not, by itself, support either prong of an ineffective assistance claim; on the contrary, a successful ineffectiveness claim must be based upon specific errors made by counsel, rather than upon trial counsel’s experience or lack thereof.

(b) Sevostiyanova further asserts that Aronow failed to investigate and prepare for her case and that she failed to interview witnesses. At the new trial hearing, however, Aronow testified that she met with appellant multiple times, spoke to witnesses, investigated the case, and spent “at least” 25 hours in pre-trial preparation. The trial court was authorized to find that Sevostiyanova failed to establish deficient performance in this regard. Further, appellant does not address how additional communications with counsel or with witnesses would have had a reasonable probability of changing the outcome of her trial, and therefore she has not shown prejudice.

(c) Sevostiyanova contends that Aronow was ineffective in consenting to bond conditions which Sevostiyanova found irksome. Appellant has cited no authority, nor have we found any, which supports her contention that a claim of ineffective assistance of trial counsel can be based on bond conditions imposed on a defendant during appeal of a criminal conviction. Moreover, although Aronow testified at the new trial hearing, appellant did not question her as to whether she actually consented to the bond conditions. Nor has appellant shown prejudice — that is, a reasonable likelihood that without Aronow’s consent the bond conditions would have been less onerous.

(d) Sevostiyanova claims ineffective assistance because trial counsel failed to subpoena the truck driver’s insurance company, in order to show that he attempted to file a false claim for repair of the truck’s tailgate. But she has not shown that such evidence was available, that it was relevant to the charges against her, or that it would have aided her defense. This enumeration fails.

(e) Appellant’s remaining enumerations asserting ineffective assistance are deemed abandoned because they are not supported by argument or by citations to the record or to relevant authority, as required by our Rule 25 (c) (2). We further note that, to the extent these claims involve trial counsel’s decisions as to whether to object to testimony, to introduce evidence, or to request a particular jury charge, they concern matters of trial tactics and strategy. Decisions concerning these matters, taken “after thorough investigation and client consultation, are virtually unchallengeable and do not require a finding of ineffective assistance of counsel.” Further, even if counsel’s performance were deficient in any of the respects named by Sevostiyanova, she has failed altogether to show prejudice and, therefore, has not established her claim of ineffective assistance.

12. Sevostiyanova asserts that she could not be prosecuted because the offenses were not committed in the presence of a police officer and the victims in this case did not desire prosecution or sign the warrant, in violation of “Policy 5.11 (III. Legal Categories of Arrest) (B) (3)” of the “Cobb County Arrest Procedures.” However, appellant has not shown, nor does our review of the record anywhere reveal, that these rules appear in the record either as a certified copy or as part of the record at trial, nor has appellant shown that she raised this alleged error in the court below or that the trial court ruled thereon. Therefore, this issue presents nothing for our review, as discussed in Division 2 above.

13. In her last enumeration of error, appellant asserts that she was denied counsel for her appeal. This assertion is not supported by the record. After her trial, attorney Louis Turchiarelli was appointed to represent her on appeal, and he filed pleadings on her behalf. However, Sevostiyanova, acting pro se, moved to terminate him from representing her, citing “major disagreements between Defendant and Counsel” and stating that henceforth she would represent herself pro se. She has not shown that she ever moved for new appellate counsel to represent her; therefore, for the reasons discussed in Division 2 above, she has not preserved this alleged error for our review. Even if she had preserved this error, an “indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.” Our review of the record and transcript leads us to conclude that, even assuming it was requested to do so, the trial court did not abuse its discretion in refusing to appoint Sevostiyanova a second attorney for purposes of this appeal.

Case No. A11A1865

14. In Case No. A11A1865, Sevostiyanova challenges the sufficiency of the evidence to support her convictions for following too closely and hit-and-run. We conclude that the evidence adduced at trial was sufficient to authorize the jury to find her guilty of both the offenses charged beyond a reasonable doubt, under the standard set forth in Jackson v. Virginia.

Properly viewed, the record reflects that on July 18, 2007, Sevostiyanova rear-ended a Honda driven by Patricia Themolis. The victim testified that she felt appellant’s vehicle hit her car twice; that both parties got out of their cars; and that she observed “a crack” in her rear bumper, which she pointed out to appellant. Appellant returned to her car, ostensibly to retrieve her driver’s license, but she never showed it to Themolis. Themolis suggested that the two women pull over to the side of the road “for [their] safety and [to] exchange information.” Themolis pulled over, but Sevostiyanova drove “straight through the light” without providing any identifying information whatsoever. Themolis noted the tag number of the departing vehicle and called the police. Sevostiyanova testified at trial, admitting that she struck Themolis’s vehicle, but denying that there was any damage.

Sevostiyanova argues that the evidence was insufficient to show the knowledge element of hit-and-run. Under subsections (a) (1) and (2) of OCGA § 40-6-270, the driver of a vehicle involved in an accident resulting in damage to another vehicle is required to stop at the scene and to provide the driver of the other vehicle with certain personal information, including his name, address, and vehicle registration number, and to show his driver’s license. OCGA § 40-6-270 (a) further provides that “[t]he driver shall in every event remain at the scene of the accident” until he has fulfilled the requirements of this subsection; and subsection (c) (1) of this Code section imposes misdemeanor punishment upon a driver who “knowingly” fails to stop and provide the required information. “To prove the knowledge element of the offense, it is not absolute and positive knowledge which must be shown, but rather only that the circumstances were such that a reasonable person would have believed that an accident had occurred resulting in death, damage or injury to another.” Thus, “the [s]tate is not required to prove actual damage, because this is not the appropriate statutory test.” The victim testified that appellant hit her car; her car was damaged; she showed appellant the damage to her car; and appellant left without giving the information required. The jury was authorized to find that Sevostiyanova “knowingly” failed to comply with OCGA § 40-6-270.

As to her conviction for following too closely, Sevostiyanova apparently contends that because the victim’s vehicle was stopped at a traffic light, and neither vehicle was stopped or slowed to make a turn, she was not “following” the victim’s vehicle within the meaning of OCGA § 40-6-49 (d). However, this subsection merely defines one possible way of “following.” It is not exclusive. OCGA § 40-6-49 (a) defines the offense of “following too closely” as follows: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” Sevostiyanova testified that as she approached the victim’s vehicle, the edge of her shoe caught between the gas and brake pedals and caused her to strike the victim’s car; and she contends that therefore she was not following “more closely than is reasonable and prudent.” But what is “reasonable and prudent” within the meaning of OCGA § 40-6-49 (a) is a question for the jury; and the jury found against Sevostiyanova in this regard, as it was authorized to do.

15. Immediately before trial, the parties prepared a “dummy” accusation to be sent out with the jury, in order to redact Count 2 (failure to report accident), which had been nol prossed by the state, and to show only the hit-and-run and following-too-closely counts. After the trial in this case, the dummy accusation was filed by the clerk, due to a clerical error; and in order to correct this error, the state subsequently entered a nolle prosequi as to the dummy accusation.

Appellant contends that the state’s nol pros of the dummy accusation automatically reversed the judgment and sentence against her. We reject this argument. The erroneous filing of the dummy accusation and the nol pros thereof were without effect and void and therefore had no effect on appellant’s convictions.

16. Sevostiyanova apparently argues that because she was issued Uniform Traffic Citations (UTCs) at the traffic stop following the collision, the state was somehow barred from filing a formal accusation charging new violations. This argument fails. First, Sevosti-yanova has not shown that this issue was raised and ruled on below; therefore, for the reasons discussed in Division 2 above, appellate review has been waived. Second, even if the issue had not been waived, the differences between the charges made in the UTCs and the charges set forth in the accusation “do not affect the accusation’s validity.” As this Court has explained,

[i]t is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued or that the prosecuting attorney has no authority to file a subsequent formal accusation. The [s]tate is not prohibited from issuing a subsequent accusation. The subsequent issuance of a formal accusation did not amend the uniform traffic citation, as contended by defendant. Rather, such accusation superseded any uniform traffic citation as the charging instrument.

17. Appellant asserts that her convictions must be reversed because she was never formally arraigned. The record reflects that, as to the charge of following too closely, appellant waived formal arraignment at least twice. Then, as to both charges, she waived formal arraignment by entering a plea of not guilty on June 8, 2009. Therefore, for the reasons discussed in Division 4 above, this enumeration fails.

18. Sevostiyanova apparently contends that Count 1 of the accusation was fatally defective because it did not use the word “knowingly” in alleging hit-and-run in violation of OCGA § 40-6-270. However, appellant waived any objection to the form of the accusation by signing the charging document and entering a not guilty plea at the beginning of trial.

The right to be tried upon an accusation that is perfect in form and in substance is waived when a defendant fails to timely and properly challenge the accusation. Because [Sevostiyanova] failed to challenge the accusation by way of special demurrer or by filing a motion to quash before entering her [not] guilty plea, she waived the right to a perfect accusation.

Even had appellant not waived this alleged error, it is without merit. The accusation charged appellant with a violation of OCGA § 40-6-270, because she “did unlawfully being the driver of a motor vehicle . . . involved in an accident resulting in damage to another vehicle . . . leave the scene of the accident and failed to give the other driver her name, address, and registration number of her vehicle, and failed to exhibit her driver’s license to another.” The term “unlawfully” in the accusation, with reference to the appropriate Code section, “sufficiently included the intent to commit the criminal act and the knowledge necessary to form such intent.” Appellant could not admit the allegations of Count 1 and remain innocent of the charge alleged therein. Thus, a general demurrer to the accusation would not lie.

19. Sevostiyanova challenges the instructions given to the jury in several respects. We find no error.

(a) Appellant contends that the trial court erred in instructing the jury that the state is not required to prove actual damage in a hit-and-run accident. We disagree. The instruction given, considered as a whole, accurately described the state’s burden with regard to knowledge, as discussed in Division 14 above.

(b) Appellant argues that certain language from Lawrence v. State and Tapes & Things v. Evans should have been given as instructions to the jury. However, the language cited by appellant is not adjusted to reflect the law and the evidence, and the trial court therefore had no sua sponte duty to charge this language. In Lawrence, the defendant stopped after the collision and found no damage, although the impact had caused the tag to fall off the struck vehicle. Because the victim did not complain of any damage, and “the only asserted harm [to the vehicle] was superficial,” we concluded that this evidence was insufficient to support a conviction for misdemeanor hit-and-run. By contrast, in the case sub judice, the victim both observed and showed to Sevostiyanova visible damage from the impact. The referenced language from Tapes & Things is also inappropriate in the case before us, because proof of actual damages is not necessary in a hit-and-run case, as discussed in Division 14 above.

(c) Appellant challenges the jury charge based on OCGA § 40-6-49 (d). The judge charged the jury on OCGA § 40-6-49 (a) and then explained the term “following” by its charge on OCGA § 40-6-49 (d). “A charge on a [C]ode section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict.” Further, contrary to appellant’s contention, there was no variance between the accusation and the proof at trial on this count.

(d) Appellant also alleges reversible error because a comma was inadvertently added to the state’s requested charge on OCGA § 40-6-49 (d). This error, if any, was harmless because the trial court read the charges aloud and the jury did not see the written charge.

(e) Appellant contends that the trial court’s charge on the following-too-closely count was error because it imposed “strict liability” as to the hit-and-run count. However, it is clear from a reading of the entire charge that the court distinguished between these two counts. Even if we were to assume that this charge was error, “an erroneous charge does not warrant a reversal unless it was harmful and, in determining harm, the entirety of the court’s jury instructions must be considered.” The charge, when considered in its entirety, fairly instructed the jurors that knowledge is an element of the hit-and-run count. Thus, the error, if any, was harmless.

20. Sevostiyanova claims ineffective assistance of trial counsel Aronow. She has failed to establish this claim.

(a) In her brief, appellant has reiterated ineffective assistance claims made in the companion case based on counsel’s alleged inexperience and failure to prepare the case, and the bond conditions imposed. These claims fail for the reasons set forth above in Division 11 (a), (b), and (c).

(b) Sevostiyanova claims ineffective assistance in counsel’s failure to request the pattern jury charge on knowledge. However, trial counsel did request a legally sufficient jury charge on knowledge, and this charge was given to the jury. Appellant has not shown either part of the ineffectiveness test.

Decided January 12, 2012

Reconsiderations denied January 27, 2012

Ekaterina Sevostiyanova, pro se.

Barry E. Morgan, Solicitor-General, Christopher S. Banning, Kevin D. Bradherry, Assistant Solicitors-General, for appellee.

(c) Sevostiyanova contends that she received ineffective assistance because her trial counsel did not interview the state’s witnesses or the victim’s insurance company. However, Aronow testified at the new trial hearing that she talked with the police officers prior to trial and that she spoke to representatives from the insurance company involved. Because the damage caused by the collision was in the thousands of dollars, Aronow concluded that presenting testimony from the insurance company was not in appellant’s best interest, and she informed Sevostiyanova of these conversations “ten, fifteen — maybe twenty times.” Sevostiyanova has failed to show either deficient performance or prejudice in this regard.

(d) Sevostiyanova’s remaining assertions of ineffective assistance are not supported by argument, citation to authority, or reference to the record. Therefore, these enumerations are deemed abandoned under our Rule 25 (c) (2). We further note that these enumerations would not support a claim of ineffectiveness, for the reasons set forth in Division 11 (e) above.

21. Appellant asserts that her Fourth Amendment rights were infringed by the accusation charging following too closely and hit-and-run. However, she has abandoned this enumeration by failing to support it with argument or citation to the record or to authority, as required by our Rule 25 (c) (2).

22. In her brief, Sevostiyanova reiterates the following enumerations made in the companion case: that her sentence violated the constitutional ban on cruel and unusual punishment; that the trial court erred in denying her motion for new trial and related motions; and that she was improperly denied appellate counsel. These enumerations fail for the reasons set forth above in Divisions 8, 10, and 13, respectively.

Judgments affirmed.

Dillard and Boggs, JJ., concur.

       See Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002).

       (Citation and punctuation omitted.) Cameron v. State, 295 Ga. App. 670 (1) (673 SE2d 59) (2009).

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

       (Citations omitted.) Robinson v. State, 277 Ga. 75-76 (586 SE2d 313) (2003), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted.) Robinson, supra at 76.

       (Footnotes omitted.) Brown v. State, 309 Ga. App. 511, 517-518 (4) (710 SE2d 674) (2011).

       (Citation and punctuation omitted.) Robinson, supra.

       (Punctuation and footnote omitted.) Rayner v. State, 307 Ga. App. 861, 867-868 (4) (706 SE2d 205) (2011). Accord Rankin, supra.

       Supra.

       (Citation and punctuation omitted.) In the Interest of S. P., 282 Ga. App. 82, 84 (2) (637 SE2d 802) (2006). Accord Jones v. State of Ga., 249 Ga. App. 64, 67 (2) (547 SE2d 725) (2001).

       (Punctuation and footnotes omitted.) Buis v. State, 309 Ga. App. 644, 647-648 (710 SE2d 850) (2011).

        Robinson, supra.

       Appellant was also charged with one count of driving without insurance (Count 3) and one count of no proof of insurance (Count 4). The state nol prossed Counts 3 and 4 after it determined that appellant had valid insurance at the time of the incident.

       Sevostiyanova also entered a not guilty plea on a “dummy” accusation incorporating Counts 1 and 2, labeled a “supplemental accusation for purposes of juror deliberation,” which was prepared so that the jury would not see the original nolo plea on Count 2 and the nol-prossed Counts 3 and 4.

       See OCGA § 17-3-1 (d) (“Prosecution for misdemeanors must be commenced within two years after the commission of the crime”).

       277 Ga. 99 (586 SE2d 240) (2003).

       Id. at 100.

       Id. at 101, citing OCGA § 17-3-3 (“If an indictment is found within the time provided for in [OCGA §] 17-3-1 . . . , and is quashed or a nolle prosequi entered, the limitation shall be extended six months from the time the first indictment is quashed or the nolle prosequi entered”).

       (Emphasis supplied.) Carlisle, supra, citing Kyles v. State, 254 Ga. 49, 50-51 (326 SE2d 216) (1985) (the six-month period referenced in OCGA § 17-3-3 operates as an extension, rather than a limit, on the otherwise applicable limitation period). Accord Davis v. Wilson, 280 Ga. 29 (622 SE2d 325) (2005).

       See McBride v. State, 213 Ga. App. 857, 860 (9) (446 SE2d 193) (1994) (defendant waived right to formal arraignment on subsequent accusation by entering not guilty plea); Staples v. State, 209 Ga. App. 802, 806 (7) (434 SE2d 757) (1993).

       (Footnote omitted.) Flores v. State, 308 Ga. App. 368, 371 (2) (707 SE2d 578) (2011). Accord Spear v. State, 270 Ga. 628, 632 (5) (513 SE2d 489) (1999).

       (Footnote omitted.) Flores, supra.

       See Clark v. State, 138 Ga. App. 266, 271 (7) (226 SE2d 89) (1976) (the purpose of arraignment is to put defendant on notice as to the charge against which he must defend), disapproved on other grounds, Walker v. State, 146 Ga. App. 237, 244-245 (3) (246 SE2d 206) (1978) (whole court).

       (Citation omitted.) Strickland v. State, 212 Ga. App. 170, 172 (3) (441 SE2d 494) (1994).

       See id. at 172 (3) (a); OCGA § 17-8-20 (“In all cases, the party making an application for a continuance must show that he has used due diligence”).

       (Punctuation and footnote omitted.) Holloway v. State, 278 Ga. App. 709, 712 (2) (629 SE2d 447) (2006).

       See Herrington v. State, 285 Ga. App. 4, 6 (c) (645 SE2d 29) (2007).

       See Bass v. State, 309 Ga. App. 601, 605 (2) (710 SE2d 818) (2011).

       See Harris v. State, which sets out the rule for setting aside a verdict based on perjured testimony:
      Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a material witness’[s] conviction for perjury, is where there can be no doubt of any kind that the [s]tate’s witnesses] testimony in every material part is purest fabrication.
      (Citation omitted.) 272 Ga. App. 650, 652 (3) (613 SE2d 170) (2005).

       See Bass, supra.

       Appellant was sentenced on Count 1 to 12 months, with 30 days to serve in confinement and the balance on probation (to run consecutive to the sentence imposed in Case No. A11A1865); a $300 fine; and payment of $1,000 restitution to the circuit defender (same restitution as in Case No. A11A1865). The conditions of probation included “no driving,” “no moving violations,” and “find a job.” No sentence was imposed on Count 2.

       Misdemeanors, including misdemeanor traffic violations, are punishable by a fine not to exceed $1,000 or up to 12 months in jail or both (OCGA § 17-10-3 (a) (1)); and the sentence imposed may be subject to probation (OCGA § 17-10-3 (b)). See Harris, supra at 653 (5). Moreover, “suspension of a defendant’s driver’s license after his conviction of a traffic-related offense is a reasonable condition of probation.” Brock v. State, 165 Ga. App. 150, 151 (299 SE2d 71) (1983).

       See Curtis v. State, 102 Ga. App. 790, 800 (9) (118 SE2d 264) (1960). Accord Harris, supra. Further, the amount awarded as restitution was reasonable in light of the fact that appellant’s trial counsel spent roughly 25 hours in preparation on this case and the companion case.

       OCGA § 16-2-2 (“A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence”).

        Griffin v. State, 267 Ga. 586 (1) (481 SE2d 223) (1997); Savage v. State, 252 Ga. App. 251, 254 (2) (556 SE2d 176) (2001).

       (Citations and punctuation omitted.) Kelley v. State, 235 Ga. App. 177, 179 (1) (509 SE2d 110) (1998).

       (Citations omitted.) Savage, supra.

       See Brown, supra at 517 (4). Accord Robinson, supra at 75-76.

        Kelly v. State, 267 Ga. 252, 254 (2) (477 SE2d 110) (1996).

         See Henry v. State, 279 Ga. 615, 616 (3) (619 SE2d 609) (2005).

       See id.

       (Citations omitted.) Schwindler v. State, 254 Ga. App. 579, 589 (10) (563 SE2d 154) (2002).

       See Robinson, supra at 77 (2).

       See Vansant v. Cobb County Police Dept., 151 Ga. App. 220 (1) (259 SE2d 205) (1979).

       (Punctuation omitted.) Garrett v. State, 159 Ga. App. 27 (282 SE2d 683) (1981).

       Supra.

       (Citation omitted.) Dalton v. State, 286 Ga. App. 666 (650 SE2d 591) (2007).

       Id.

       See McKay v. State, 264 Ga. App. 726, 728 (1) (592 SE2d 135) (2003).

       OCGA § 40-6-49 (d) (“Vehicles which approach from the rear any other vehicle . . . stopped or slowed to make a lawful turn shall be deemed to be following for purposes of this Code section”).

        Lesh v. State, 259 Ga. App. 325, 327 (577 SE2d 4) (2003).

       See Smith v. State, 239 Ga. App. 515, 517 (2) (521 SE2d 450) (1999).

       Id., citing Ellerbee v. State, 215 Ga. App. 102, 104 (3) (449 SE2d 874) (1994). See also OCGA § 17-7-71 (f), which since its amendment in 2002 allows the prosecutor to amend accusations and citations to allege any offense arising out of the same conduct which gave rise to the offenses originally alleged. See Ga. L. 2002, p. 627, § 2.

       (Citation and punctuation omitted.) Beaver v. State, 308 Ga. App. 380, 381 (1) (707 SE2d 590) (2011).

       (Citations omitted.) Tidwell v. State, 216 Ga. App. 8, 10 (1) (453 SE2d 64) (1994).

       See State v. Pendergrass, 298 Ga. App. 801, 802-803 (1) (681 SE2d 241) (2009) (an indictment is good if the defendant cannot admit all the facts alleged therein and remain innocent).

       257 Ga. App. 592 (571 SE2d 812) (2002) (physical precedent only). Appellant refers to the following language from this opinion: “Where . . . the evidence shows that the person who caused the collision stopped and found no damage and that the only asserted harm was superficial, there is no civil liability to avoid, and the statutory requirement serves no purpose.” Id. at 594.

       133 Ga. App. 705 (212 SE2d 31) (1975). Appellant refers to the court’s language setting out two ways to prove civil damages to a motor vehicle caused hy a collision. Id.

       See Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404) (1989) (“A request to charge must be legal, apt and precisely adjusted to some principle involved in the case and authorized by the evidence”) (citation and punctuation omitted).

       See Haupt v. State, 290 Ga. App. 616, 619-620 (2) (a) (660 SE2d 383) (2008) (the trial court must adjust its jury charge to reflect the law and the evidence).

        Lawrence, supra at 593-594.

       Supra.

       (Citation and punctuation omitted.) Jones v. State, 310 Ga. App. 705, 709 (c) (713 SE2d 895) (2011).

       (Punctuation and footnote omitted.) Roberts v. State, 309 Ga. App. 681, 684 (2) (710 SE2d 878) (2011).


author: PHIPPS, Presiding Judge.

text:
    A09A1619.
    DAVENPORT v. THE STATE.
    (722 SE2d 457)
   PHIPPS, Presiding Judge.

Emily Davenport was convicted of driving under the influence of alcohol. In Davenport v. State, she appealed from the conviction, challenging the trial court’s denial of her motion for an order authorizing the issuance of a subpoena to an out-of-state witness. In denying Davenport’s motion, the trial court determined that the out-of-state witness’s testimony was not necessary and material to the case. We affirmed the judgment.

The Supreme Court of Georgia vacated our judgment and remanded the case to us with direction. The Court held that we erred in stating that Davenport was required to make a showing that the out-of-state witness was a “necessary and material” witness. The Court explained that, under OCGA § 24-10-94, the Georgia trial court is required to “determine only whether the out-of-state witness is a ‘material witness’ in the Georgia criminal prosecution and whether it should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia.” Whether the witness is “necessary and material,” the Court further explained, “is one of the determinations that must be made under OCGA § 24-10-92 (b) by the judge in the county where the out-of-state witness is located.”

Because the court below did not apply the proper statute in this case, we remand the case for the court to apply the correct statute and revisit Davenport’s motion for an order authorizing the issuance of the out-of-state subpoena. If the trial court determines that the witness is a material witness, then it must consider whether it should have issued a certificate in this case and, if so, whether Davenport is entitled to a new trial or a new trial conditioned on the issuance by the out-of-state court of a subpoena to compel the appearance of the witness in Georgia. If the trial court determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Davenport may file a timely appeal from that determination.

Decided January 27, 2012.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Barry E. Morgan, Solicitor-General, Joseph W. Hudson, Assistant Solicitor-General, for appellee.

Judgment affirmed on condition and case remanded with direction.

Dillard and Boggs, JJ., concur.

       303 Ga. App. 401 (693 SE2d 510) (2010).

       Id.

       The trial court expressly incorporated the reasoning and legal analysis set forth in the order in another case pending below, which order included the “necessary and material” statutory language.

        Davenport, supra at 403.

        Davenport v. State, 289 Ga. 399, 404 (711 SE2d 699) (2011).

       Id. at 402.

       Id.

       Id.

       See id. at 404.

       See Spann v. State, 310 Ga. App. 575, 576 (1) (713 SE2d 722) (2011).

       Id.; DiMauro v. State, 310 Ga. App. 526, 529 (2) (714 SE2d 105) (2011).

       See Spann, supra; DiMauro, supra.


author: DOYLE, Presiding Judge.

text:
    A11A1676.
    REESE v. THE STATE.
    (722 SE2d 441)
   DOYLE, Presiding Judge.

A jury found William Reese guilty of criminal trespass and felony theft by receiving stolen property. He now appeals from the trial court’s denial of his motion for new trial, contending that (1) the evidence was insufficient to support the verdict, (2) the trial court erroneously admitted certain evidence, (3) his trial counsel was ineffective, and (4) the trial court erroneously failed to probate a portion of Reese’s sentence. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that in April 2008, Reese approached an apartment occupied by George Henderson, whom Reese did not know. Reese pounded on the door, but Henderson did not recognize Reese and did not answer the door. Henderson observed Reese go to the back of the apartment and look through a rear window. Hearing a dog barking inside the apartment, Reese approached a different window, broke it, and began entering a bedroom through the window. The dog chased Reese out the window, and Henderson ran outside the apartment to confront Reese. Reese said he was “here to see Cheryl,” a person unknown to Henderson, and attempted to flee. Henderson chased down Reese and restrained him until a bystander called the police, who arrived shortly thereafter.

The responding officer arrested Reese based on Henderson’s description of events. When searching Reese’s pockets incident to the arrest, the officer found women’s jewelry, a cell phone, and a credit card with the name Carie Agnew. A detective dialed a contact listed as “home” on the cell phone and reached a woman named Pamela Slayback, who later identified the phone and jewelry as items stolen from her home the day before.

Reese was charged with burglary and theft by receiving stolen property. Following a trial, a jury returned a guilty verdict as to criminal trespass (as a lesser included offense of the burglary count) and theft by receiving. Reese moved for a new trial, which motion was denied, giving rise to this appeal.

1. Reese first challenges the sufficiency of the evidence with respect to the felony theft by receiving count. Specifically, Reese argues that the State failed to prove that (a) he knew or should have known the items in his pockets were stolen, and (b) the items were of a value greater than $500.

(a) Under OCGA § 16-8-7 (a), “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” “Knowledge that the property in question was stolen is an essential element of the crime of theft by receiving. The jury may infer that knowledge from circumstances which would excite suspicion in the mind of an ordinary prudent [person].”

Here, the evidence showed that Reese possessed a cell phone traced to someone else, a debit card with an unrelated woman’s name on it, and assorted women’s jewelry stuffed into his pockets. He possessed these items while he was seen climbing uninvited into the window of a stranger’s residence. Reese had made no effort to contact the rightful owner of the cell phone, which was identified as stolen. When confronted by the occupant of the residence, Reese fled and resisted detention while awaiting the arrival of police. “[E]vi-dence that a defendant was attempting to avoid police detection immediately before or during the commission of a crime, just like evidence of flight following a crime, is circumstantial evidence of consciousness of guilt.” Therefore, when viewed favorably to the verdict, these circumstances were sufficient to support an inference that Reese knew the items were stolen.

(b) Reese also argues that the evidence failed to support a felony conviction as to the theft by receiving count, because it did not demonstrate the value of the stolen items. Theft by receiving stolen property is punished as a misdemeanor, unless “the property which was the subject of the theft exceeded $500.00 in value.”

As to the value of stolen property,

the testimony of the owner of the value of [the] stolen items based upon his experience in buying them, coupled with the jury’s awareness of the value of “everyday objects,” is sufficient to allow the jury to consider such opinion evidence and make reasonable deductions exercising their own knowledge and ideas.

Here, the stolen jewelry items in question were such “everyday objects,” and the owner testified that she or her husband bought them and that they had a value of more than $500. Accordingly, the jury was authorized to find Reese guilty of felony theft by receiving, and the evidence supported the felony sentence.

2. Reese also contends that the trial court erred by admitting two photographs showing the contents of Reese’s pockets when he was arrested. The photographs depicted women’s jewelry and a cell phone — both traced to Slayback, who testified — as well as a credit card under the name Carie Agnew, who did not testify and was not further identified at trial. Reese argues that allowing the jury to see the credit card improperly placed his character at issue. We review such a decision for a clear abuse of the trial court’s discretion.

Here, the trial court reasoned that the photographs were relevant because they depicted stolen items contained in Reese’s pockets at the time he was arrested for burglary. Sensitive to the issue raised by Reese, the trial court did exclude evidence that Reese also possessed drug paraphernalia in his pockets, because that evidence was not relevant to the indicted offense. But the credit card in a woman’s name was found along with stolen women’s jewelry, and evidence of both permitted an inference that Reese possessed items belonging to someone else. “Evidence that is relevant and material to an issue in the case is not made inadmissible because it incidentally places the defendant’s character in issue.” Further, “[t]he State is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial.” The challenged photographs depicted the contents of Reese’s pockets, which included stolen jewelry, at the time he was arrested for burglary. This was relevant to demonstrating his knowledge of the rightful ownership of the items in his possession. Accordingly, we discern no abuse of discretion in admitting the challenged photographs.

3. At the conclusion of the trial, Reese was sentenced to serve ten years on the theft count, and twelve months to serve concurrently on the trespassing count. On appeal, Reese argues that his trial counsel was ineffective because he incorrectly acquiesced to the ten-year sentence to serve on the theft count in light of Reese’s three prior felony convictions, which were presented to the court. Reese points out that during the sentencing hearing his trial counsel stated, “given the law as it stands you’re obligated to give [Reese] the ten years to serve. . . . [T]he only thing we’re really haggling about here is” whether to impose the trespassing sentence concurrently (which the trial court did). Reese contends that his trial counsel incorrectly informed the court that it had no discretion but to sentence him to serve the entire ten-year sentence. Reese now notes that this was an incorrect statement of law. Instead, the trial court had discretion to probate a portion of the ten-year sentence.

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

Here, the record shows that the trial court stated the following rationale for its sentence: “[T]his court takes into consideration that there are three prior felonies . . . with certified copies [,] and this court therefore sentences Mr. Reese to ten years to serve.” There is no other indication of the basis for the court’s decision not to probate a portion of the ten-year sentence, and “[u]nless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing sentence.” This is not a case in which the trial court stated that it believed its discretion was constrained; rather, it cited Reese’s criminal history, which was properly noticed and tendered by the State, in pronouncing its sentence, an entirely permissible basis upon which to formulate a recidivist sentence. Therefore, in the absence of affirmative evidence showing that the trial court believed it had no discretion, we discern no prejudice caused by trial counsel’s conduct. Therefore, Reese cannot meet his burden under Strickland, and the enumeration is meritless.

Decided January 27, 2012.

Brown & Gill, Angela B. Dillon, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

4. Reese’s last enumeration mirrors the above argument, contending that the trial court erroneously failed to exercise its discretion by failing to probate a portion of his ten-year sentence. This enumeration is without merit for the same reasons stated above.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 16-7-21 (b) (1).

       OCGA § 16-8-7 (a).

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

       (Citation and punctuation omitted.) Miller v. State, 275 Ga. 32, 34 (1) (561 SE2d 810) (2002).

       (Punctuation omitted.) Green v. State, 277 Ga. App. 867, 869 (1) (627 SE2d 914) (2006).

       OCGA § 16-8-12.

       (Punctuation omitted.) Campbell v. State, 275 Ga. App. 8, 11 (3) (619 SE2d 720) (2005).

       See Price v. State, 283 Ga. App. 564, 565 (1) (642 SE2d 191) (2007).

       See id.; Campbell, 275 Ga. App. at 11 (3).

       See Bryant v. State, 288 Ga. 876, 889 (10) (708 SE2d 362) (2011).

       (Punctuation omitted.) Buice v. State, 289 Ga. App. 415, 417 (2) (657 SE2d 326) (2008).

       (Punctuation omitted.) Nash v. State, 285 Ga. 753, 754 (2) (a) (683 SE2d 591) (2009).

       See generally OCGA § 17-10-7 (a), (c); Henderson v. State, 247 Ga. App. 31, 32 (2) (543 SE2d 95) (2000) (“When a trial court has sentenced a recidivist to the maximum penalty under the mistaken belief that it had no discretion to suspend or probate any part of the sentence, we have remanded for resentencing.”); Banks v. State, 225 Ga. App. 754, 756-757 (5) (484 SE2d 786) (1997) (same).

       See Banks, 225 Ga. App. at 757 (5).

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

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

       See id. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

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

       (Punctuation omitted.) Paige v. State, 277 Ga. App. 687, 688-689 (2) (627 SE2d 370) (2006). See also Steele v. State, 270 Ga. App. 488, 491 (606 SE2d 664) (2004) (“To require remand, there must be a clear statement in the record that constitutes either a general refusal to consider [more lenient] treatment or an erroneous expression of belief that the law does not permit the exercise of such discretion.”) (punctuation omitted); Denny v. State, 226 Ga. App. 432, 436 (13) (486 SE2d 417) (1997).

       Compare Banks, 225 Ga. App. at 757 (5).

       See generally OCGA § 17-16-4 (a) (5) (requiring notice to the defendant of prior convictions to be offered by the State during sentencing).

       See, e.g., Greeson v. State, 253 Ga. App. 161, 164 (3) (558 SE2d 749) (2002) (“trial court did not err in considering [prior] offenses for purposes of sentencing [defendant] as a recidivist”). See generally Trujillo v. State, 304 Ga. App. 849, 853 (2) (698 SE2d 350) (2010) (“[A] trial court’s decision to exercise its discretion in granting probation naturally includes an assessment of the likelihood that the defendant will have the ability to successfully comply with the imposed conditions of probation.”).

       See Taylor v. State, 282 Ga. App. 469, 472 (3) (c) (638 SE2d 869) (2006) (holding that the defendant failed to establish prejudice because the record did not show that trial court’s sentencing rationale was improper).

       See id.


author: Ellington, Chief Judge.

text:
    A11A1693.
    LAWSON v. THE STATE.
    (722 SE2d 446)
   Ellington, Chief Judge.

A Clayton County jury found Anthony Lawson guilty of driving under the influence of alcohol, OCGA § 40-6-391 (a) (5) (per se); driving an uninsured vehicle, OCGA § 40-6-10 (b); driving a motor vehicle with a suspended registration, OCGA § 40-6-15 (a); and violating a county open container ordinance. Lawson challenges the sufficiency of the evidence supporting his convictions. For the reasons that follow, we affirm in part and reverse in part.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. At about 3:00 a.m. on January 30, 2010, employees of a Clayton County McDonald’s restaurant called the police to report a suspicious vehicle in the restaurant’s parking lot. When an officer arrived, he saw a blue Chevrolet Blazer parked across the lines of two of the lot’s marked spaces. The car’s headlights were on, and the engine was running. As the officer approached the car, he saw only Lawson inside. Lawson was slumped in his seat, asleep, with both hands on the steering wheel. After the officer tapped on the window several times, Lawson woke up. He was very groggy, and he initially did not know his name or where he was. After struggling to find his license, Lawson eventually identified himself to the officer and the officer’s Captain, who had just arrived.

The responding officer testified that there were two nearly empty bottles of vodka on Lawson’s passenger seat. Lawson told the police that he was alone, that he had been drinking, and that he had consumed one grapefruit and vodka beverage before driving to the McDonald’s. The officers testified that Lawson’s speech was slurred; that he was drooling; that his eyes were bloodshot and his gaze “rolling”; that he moved his hands slowly, as if they weighed “a ton”; that his head swayed, as if he was off balance; and that he had great difficulty stepping out of his car. Lawson told the police that he had driven to McDonald’s to get some food, and he indicated that he had driven there from the direction of the freeway. Both officers testified that Lawson appeared highly intoxicated and that, in their opinion, it was unsafe for him to drive. A test given shortly thereafter revealed that Lawson’s blood-alcohol concentration was 0.157.

The responding officer testified that he checked the Georgia Crime Information Center database and determined that the vehicle that Lawson was driving had a suspended registration and was uninsured. Lawson admitted to the police that he had been driving without insurance. He told the police that the car belonged to his father, and that he had been driving the car since his father had died. At trial, Lawson testified that he did not know the vehicle was not properly registered, that his sister wanted the car and that she was supposed to have taken care of any transfer of the registration after their father’s death, and that his father usually paid the insurance on the car in advance.

In addition to this evidence, the State showed that, in 2006, Lawson was arrested for DUI after he pulled into the parking lot of a Huddle House at 4:30 a.m. He had an open container in the car. Although he told the police that he only consumed one beer, his blood-alcohol concentration was 0.148. Lawson pleaded guilty to the offense. Further, Lawson also admitted at trial that he had a second prior DUI conviction from 2000.

1. Lawson contends that the State’s evidence fails to establish that he was driving or in actual physical control of a moving vehicle, as required for a conviction under OCGA § 40-6-391 (a). He argues that his mere presence in the stopped vehicle was insufficient to prove that he drove under the influence of alcohol. Specifically, he argues that there was no evidence that he became drunk before he drove his car to the McDonald’s and parked there rather than after, as he testified at trial.

[A] conviction for driving or being in actual physical control of a moving vehicle while under the influence of intoxicants may be based on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. We have no yardstick to measure consistency or reasonableness, save the opinion of the [factfinder], whose function it is to determine [the] credibility of witnesses and questions of reasonableness.

(Footnote omitted.) Merritt v. State, 288 Ga. App. 89, 94 (1) (653 SE2d 368) (2007).

In addition to the fact that the police found a very drunk Lawson alone in the driver’s seat, his hands on the wheel of a car that had its headlights on and its engine running, Lawson admitted to the police that he had been drinking and that he drove to the McDonald’s to get some food after consuming alcohol. Although the police officers did not see Lawson’s car moving, they observed circumstances from which the jury could reasonably “infer that [Lawson] was in actual physical control of the car when it was moved to the location where the officer[s] found it, and that [Lawson] was intoxicated . . . while moving it there.” (Citation and punctuation omitted.) Deering v. State, 244 Ga. App. 30, 32 (1) (535 SE2d 4) (2000). See also Jenkins v. State, 223 Ga. App. 446, 447 (1) (478 SE2d 143) (1996); Schoicket v. State, 211 Ga. App. 636, 637 (2) (440 SE2d 65) (1994); Melendy v. State, 202 Ga. App. 638 (1) (415 SE2d 62) (1992); Johnson v. State, 194 Ga. App. 501, 501-502 (1) (391 SE2d 132) (1990). Given Lawson’s admission and the officers’ observations, the jury was authorized to find from this evidence that no other reasonable hypothesis existed for Lawson’s presence at the McDonald’s, other than that he drove the car while under the influence of alcohol.

2. Lawson contends the State failed to prove, as alleged in the accusation, that he “did knowingly operate a motor vehicle without effective insurance on such vehicle” in violation of OCGA § 40-6-10 (b). That Code section provides, in relevant part: “ ‘An owner or any other person who knowingly operates or knowingly authorizes another to operate a motor vehicle without effective insurance on such vehicle or without an approved plan of self-insurance shall be guilty of a misdemeanor[.]’ ” “A material element of subsection (b) is the driver’s knowledge that the car is uninsured. The issue in this case is therefore whether the State proved that element beyond a reasonable doubt.” English v. State, 261 Ga. App. 157, 159-160 (3) (582 SE2d 136) (2003).

The State presented evidence that the car Lawson was driving was uninsured and that Lawson admitted to the police that he was “driving without insurance.” Thus, the jury could find from this evidence, beyond a reasonable doubt, that Lawson did knowingly operate a motor vehicle without effective insurance as alleged in the accusation. See Thompson v. State, 243 Ga. App. 878, 881 (2) (534 SE2d 151) (2000) (When defendant told police she had no insurance, but later testified at trial that she believed she had insurance coverage, the question of knowledge was a credibility issue for the jury to decide under proper instructions from the trial court.).

3. Lawson contends the State failed to prove that he violated OCGA § 40-6-15 (a), which provides: “Any person who knowingly drives a motor vehicle on any public road or highway of this state at a time when the vehicle registration of such vehicle is suspended, canceled, or revoked shall be guilty of a misdemeanor.” Lawson contends that, although the officers testified that the car that he was driving had a suspended registration, their testimony, to which he objected, constituted hearsay, had no probative value, and was insufficient to establish that he knew the registration had been suspended.

Pretermitting whether the officers’ testimony constituted hearsay, we agree that there is no evidence in the record from which the jury could reasonably infer that Lawson “knowingly” drove a motor vehicle with a suspended, cancelled, or revoked registration. Although “knowledge or scienter may be proved, like any other fact, by circumstantial evidence[,]” (citations and punctuation omitted) Langham v. State, 196 Ga. App. 71, 72 (2) (395 SE2d 345) (1990), to warrant a conviction on such circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.

Here, the State failed to offer any evidence from which the jury could reasonably infer that Lawson had either actual or constructive knowledge of the car’s registration status. Lawson did not own the car. The evidence shows only that he had been driving it. The State did not show that Lawson inherited the car nor did it present any facts from which the jury could infer that the car had been in his possession, custody, or control for any specific length of time. In fact, the State adduced no evidence establishing to whom the car was actually registered, when the car’s registration had been suspended, or for what reason. Lawson’s unrebutted testimony established that the car did not belong to him, that he did not know the car was not properly registered, that his sister wanted the car, and that she was supposed to get it registered in her name after their father died. Thus, the State’s evidence fails to exclude the reasonable hypothesis that, when Lawson drove his father’s car, he did not know that the registration had been suspended. Consequently, this conviction must be reversed. See English v. State, 261 Ga. App. at 159-160 (3) (State failed to present evidence from which the jury could infer that driver knowingly drove without insurance.); see also In the Interest of J. S., 303 Ga. App. 788, 790 (1) (694 SE2d 375) (2010) (“(W)hen the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.”) (punctuation and footnote omitted).

4. Lawson contends that his conviction for violating the county’s open container ordinance must be reversed because the State failed to make a certified copy of the ordinance a part of the record at trial. We agree.

The record reveals that, in Count 3 of the accusation, the State charged Lawson with “possessing an open container of any alcoholic beverage while operating a motor vehicle” in Clayton County, in violation of that county’s open container ordinance. The record shows that the State submitted a certified copy of the ordinance to the court during trial. However, during the jury charge conference, the court discussed with counsel the law applicable to the open container instruction, suggesting that he would charge the jury “according to OCGA.” The instruction the court ultimately gave the jury tracked the language of OCGA § 40-6-253 (b) (1) almost verbatim:

A person shall not consume any alcoholic beverage or possess any [open] alcoholic beverage container in the passenger area of any motor vehicle which is on the highway or shoulder of any public highway.

State’s Exhibit 8, which was made part of the record on appeal, declares on its first page that it is a certified copy of the Clayton County ordinances pertaining to open containers and is comprised of “pages CD6:6.1 through CD6:7, Chapter 6 ‘Alcoholic Beverages’; Article I.” The document in the record, however, contains only one of the pages referenced on the certification sheet, CD6:6.1, which sets forth the definition of an open container. The document does not set forth the ordinance prohibiting the possession of an open container.

It is axiomatic that the State must prove the crime charged in the accusation or indictment beyond a reasonable doubt. Jones v. State, 272 Ga. 900, 902-903 (2) (537 SE2d 80) (2000). While the record contains evidence showing that Lawson had in his car, within his reach, an open container of an alcoholic beverage,

there is no showing that such conduct violated any cognizable criminal law of the local government. In the absence of evidence of a properly admissible copy of the ordinance involved, neither the trial court nor this court may take judicial notice of the existence of a local ordinance. Because the State failed to meet its burden of proving beyond a reasonable doubt that [Lawson’s possession of an open container] violated any local ordinance, his conviction must be reversed.

(Citations and punctuation omitted.) Poole v. State, 229 Ga. App. 406, 409 (2) (494 SE2d 251) (1997).

Judgment affirmed in part and reversed in part.

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

Decided January 27, 2012.

Ramona D. Terry, Leon Hicks, for appellant.

Taska M. Mosley, Solicitor-General, Keith E. Gammage, Assistant Solicitor-General, for appellee.

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

       The accusation alleged that Lawson had no insurance coverage, not that he had no proof of insurance coverage. The court’s judgment also reflects that Lawson was convicted of “Insurance - None.” Thus, the State alleged and Lawson was convicted of a violation of OCGA § 40-6-10 (b), not OCGA § 40-6-10 (a) or OCGA § 33-34-4, as Lawson argues. See English v. State, 261 Ga. App. 157, 159-160 (3) (582 SE2d 136) (2003) (When a charging instrument “describes the crime as ‘no insurance,’ as opposed to ‘no proof of insurance,’ it is properly construed as charging a violation of OCGA § 40-6-10 (b).”) (citation omitted).


author: Doyle, Presiding Judge.

text:
    A11A1769.
    GUNTER v. THE STATE.
    (722 SE2d 450)
   Doyle, Presiding Judge.

Ricky Eugene Gunter, Jr., was charged with six counts of sodomy (Counts 1-6), child molestation (Count 7), five counts of statutory rape (Counts 8-12), six counts of aggravated child molestation (Counts 13-18), robbery (Count 19), two counts of cruelty to a child in the third degree (Counts 20-21), and interfering with a call for emergency assistance (Count 22). A Madison County jury found him guilty on all counts. Thereafter, the trial court granted a directed verdict as to Count 19 (robbery); the trial court also directed a verdict as to Count 2 (sodomy), Count 14 (aggravated child molestation), and Count 20 (cruelty to a child in the third degree). Gunter appeals the denial of his subsequent motion for new trial, arguing that his trial counsel was ineffective by failing to object to hearsay testimony by law enforcement personnel and to the introduction of the victim’s recorded interview. We affirm, for the reasons that follow.

“ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.’ ” So viewed, the evidence shows that on February 27, 2007, Gunter’s wife, Cortney, told police that she looked into her bedroom window from outside and witnessed Gunter and her 14-year-old niece, S. T, hug, kiss, and engage in oral sex. When Cortney confronted Gunter, she attempted to call 911, and he yanked the phone cord from the wall, tackled her, and grabbed her cell phone as she tried, to leave the home; several minor children witnessed the altercation. Police responded to the scene and interviewed S. T., who stated that Gunter had sexual intercourse and oral sex with her on numerous previous occasions, giving details and dates of the instances.

At trial, S. T. conceded that she had told police that she had engaged in sexual relations with Gunter, but she recanted, testifying that she fabricated the allegations to hurt Cortney. A police officer and caseworker for the Department of Family and Children Services (“DFCS”) testified, summarizing S. T.’s prior allegations regarding Gunter, and the State played a recording of S. T.’s interview to police. The State also admitted a letter from S. T. to Gunter professing her love for him and noting that he was “the first for so many things”; S. T. admitted that she wrote the letter, explaining that she left it on a night stand in the Gunters’ bedroom “to make Cortney mad.”

Following his conviction, Gunter appeals the denial of his motion for new trial, arguing that his trial counsel was ineffective because she failed to object to the admission of testimony by police and DFCS personnel regarding S. T.’s allegations and S. T.’s recorded interview.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court,] we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Gunter claims that S. T.’s recorded statement and the testimony of the State’s witnesses regarding her allegations were inadmissible because the State failed to lay the requisite foundation before their admission. We disagree.

The prior inconsistent statement of a witness who is present and available for cross-examination may be admitted as substantive evidence or as impeachment evidence if the time, place, person, and circumstances attending the former statement are called to [her] mind with as much certainty as possible.

The purpose of laying such a foundation “is to give the witness an opportunity to admit, explain, or deny the prior contradictory statement.”

Here, the prosecutor asked S. T. about the events that occurred on February 27, 2007, and she recalled that she was in the Gunters’ master bedroom when Cortney entered the house, but denied that she was “doing anything” with Gunter. After she also denied doing “anything sexual with [Gunter],” S. T. responded affirmatively when asked if she “did an interview and stated to the Madison County Sheriffs Office that [she] had sexual intercourse and sex acts with the Defendant.” S. T. testified that she spoke to a second officer another day, and that the DFCS caseworker was present at the time. S. T. conceded that she “gave specific dates” when she spoke to the first officer, and that she told the second officer and the DFCS caseworker: “[t]hat it did happen, because I thought since I had already told them that they were going to assume that’s what happened. So then I started giving them dates that I had done stuff with other guys.”

Thus, S. T. acknowledged making the prior statements regarding her sexual activity with Gunter to the police, and she conceded that they were contradictory to her trial testimony, explaining that she fabricated the allegations against Gunter to anger Cortney. Under these circumstances, we conclude that the State established a proper foundation for use of S. T.’s prior inconsistent statements. Given S. T.’s admissions regarding the prior contradictory statements, including that she fabricated the allegations against Gunter, we are unpersuaded by Gunter’s argument that the State’s failure to question her about the specifics of each and every statement to authorities in detail rendered the prior inconsistent statements inadmissible. “Since any objection trial counsel could have made would have been meritless[,] and failure to make a meritless objection cannot be evidence of ineffective assistance,” Gunter’s claim of ineffective assistance of counsel fails.

Decided January 27, 2012.

Edgar A. Callaway, Jr., for appellant.

Robert W. Lavender, District Attorney, James W. Webb, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 16-6-2 (a) (1).

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-6-3 (a).

       OCGA § 16-6-4 (c).

       OCGA § 16-8-40 (a) (1).

       OCGA § 16-5-70 (d).

       OCGA § 16-10-24.3.

        Howell v. State, 278 Ga. App. 634 (629 SE2d 398) (2006).

       (Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) Edmond v. State, 283 Ga. 507, 510 (6) (661 SE2d 520) (2008). See OCGA § 24-9-83.

        Duckworth v. State, 268 Ga. 566, 567-568 (1) (492 SE2d 201) (1997).

       See Byrum v. State, 282 Ga. 608, 610 (4) (652 SE2d 557) (2007) (foundation properly laid for the admission of prior inconsistent videotaped statement because the witness confirmed that he gave the videotaped statement to the police after his arrest and confirmed that it was inconsistent with his trial testimony); Meschino v. State, 259 Ga. 611, 613 (2) (385 SE2d 281) (1989) (prior inconsistent statement properly admitted because the witness admitted making the statement to authorities after the incident giving rise to the charges against the defendant).

        Green v. State, 281 Ga. 322, 323 (2) (638 SE2d 288) (2006).