text:
    A15A0212.
    ARBEGAST v. THE STATE.
    (773 SE2d 283)
   McFadden, Judge.

After a jury trial, Steven Jesse Arbegast was convicted of two counts of child molestation. He appeals, arguing that the trial court erred in admitting similar transaction evidence, but we find that he has not shown that the trial court abused his discretion in admitting the evidence. Arbegast argues that the trial court erred by failing to give an additional instruction to the jury on the limited purpose of such evidence, but he did not ask for an additional instruction. Arbegast argues that the trial court erred by denying his request for a continuance due to the state’s failure to disclose the contact information for one of the similar transaction victims, but he was given the remedy to which he was entitled, the opportunity to interview the witness before she testified. Arbegast argues that the trial court erred by denying his motion for funds to hire an expert witness, but he did not make the required showing. Arbegast argues that the introduction of child hearsay violated his constitutional confrontation rights, but he did not object on this ground at trial and he chose not to have the declarants testify. Arbegast raises eight claims of ineffective assistance of counsel, but he has not shown both deficient performance by trial counsel and actual prejudice. We therefore affirm Arbegast’s convictions.

1. Facts.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted).

Viewed in this light, the evidence shows that Arbegast was convicted of molesting two victims, K. Q., who was ten years old, and her sister, K. B., who was nine years old. Arbegast was formerly married to their stepfather’s sister. In August 2003, Arbegast called the victims’ mother to ask if the victims and their younger sister could go to a movie with him and his seven-year-old son. Arbegast’s car was too small to fit them all and the mother was ill and could not drive them, so the victims’ grandmother dropped them off and their mother’s friend agreed to pick them up.

The mother accompanied her friend to pick up the girls, who were waiting outside the mall with Arbegast and his son. When she got in the car, K. Q. began crying. Her mother asked her what was wrong and she blurted out, “Uncle Steve touched me.” K. B. said that he had touched her, too. They arrived home, and the mother told her husband. They separated the girls and called the police. At the police station, a detective spoke with K. Q. and K. B. separately, and the interviews were recorded. The video recording was played for the jury.

The recording shows that K. Q. told the detective that while they were at the movies, Arbegast “touched [her] in areas [she did not] like.” He first hugged her, then touched her “in the middle and the top” under her pants with his hand. She tried to slide away from him on her movie seat, but he pulled her back and then put his hand under her shirt, touching her chest. After the movie, Arbegast took the children to a video arcade, where he asked K. Q., “Are we cool?” As they were leaving the mall, Arbegast said, “Don’t tell anybody.”

K. B. told the detective that Arbegast put his finger in her “pee pee.” She explained that she had been sitting on his leg, bouncing, when “he took his hand and put it in [her],” under her panties.

We conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Arbegast was guilty of the crimes of which he was convicted. Jackson, supra, 443 U. S. at 319 (III) (B).

2. Similar transaction evidence.

(a) Admissibility.

Arbegast argues that the trial court erred in admitting two similar transactions. He argues that both were too remote in time from the instant crimes to be admissible; that his young age at the time of the first similar transaction rendered it inadmissible; and that the evidence was insufficient to prove that he committed the second similar transaction. (“Because this case was tried prior to January 1, 2013, Georgia’s old Evidence Code applies here.” Bragg v. State, 295 Ga. 676, 677 (2), n. 3 (763 SE2d 476) (2014).) Arbegast has not shown that the trial court abused his discretion in admitting the similar transaction evidence.

At trial, the mother of the victim of the first similar transaction testified that in 1988, when her son was five years old, his father noticed sores on the boy’s penis. A pediatrician diagnosed the boy with herpes and referred him to a specialist at a local hospital, who determined that he had been sexually assaulted. The state played a video recording of the victim, made in October 1991 when the victim was eight years old, describing the sodomy and identifying Arbegast as the perpetrator. He testified that “Steve” told him not to tell anyone. The mother testified at Arbegast’s trial that she decided not to press charges because her son was terrified of Arbegast, who would have had the right to confront the boy at trial.

The victim of the second similar transaction testified that in 1992, when she was 17 years old, she worked as a cashier at a grocery store. On June 5,1992, when their shifts ended, she and a co-worker, another 17-year-old girl, went to the friend’s house to watch a movie. Arbegast, who supervised the girls at work and was 21 years old, showed up uninvited. At one point, the victim went to the bathroom and closed, but did not lock, the door. As she was pulling up her shorts, Arbegast walked into the bathroom and locked the door. He pushed the victim against the wall, put his hand over her mouth, fondled her breasts, and inserted his finger into her vagina. The friend began knocking on the door, and Arbegast ran from the bathroom and left the house. The victim called her mother, and her mother or her friend called the police, to whom the victim gave a statement.

The trial court held that the similar transactions were admissible to show Arbegast’s course of conduct and bent of mind.

(1) Remoteness.

Arbegast argues that the similar transactions were too remote in time from the instant crimes to be admitted. The instant crimes occurred in August 2003. The first similar transaction occurred no later than 1988, a lapse of 15 years, and the second similar transaction occurred in 1992, a lapse of 11 years.

Before admitting similar transaction evidence,

the trial court must determine that the [s]tate has affirmatively shown that: (1) the [s]tate seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009) (citations omitted). We review the trial court’s decision to admit similar transaction evidence for an abuse of discretion. Id. at 121.

Generally, the lapse of time between a similar transaction and the crime being tried goes to the weight and credibility of the evidence, not to its admissibility. Pareja, 286 Ga. at 119. But, as Arbegast correctly asserts, when similar transactions that did not result in convictions “are particularly remote because they were committed decades in the past,” id. (emphasis supplied), the trial court also must consider whether “the prejudice to the defendant

caused by defending against alleged crimes occurring in the far distant past outweigh[s] any probative value the alleged crimes may have in a prosecution for a current crime.” Id. at 121 (emphasis supplied). However, “[particularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed.” Lakes v. State, 314 Ga. App. 10, 12 (1) (722 SE2d 859) (2012) (citation and punctuation omitted). This is so “because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.” Pareja, 286 Ga. at 121 (citation omitted). And “we must be mindful that [the] decision [to admit similar transaction evidence] should be upheld unless it is an abuse of discretion.” Id. (citation omitted).

Assuming without deciding that 11-year-old and 15-year-old similar transactions are “particularly remote” so as to require attention to additional considerations for admissibility, rather than weight and credibility, we find that the trial court did not abuse his discretion in admitting the evidence. Both similar transactions and the instant crimes involved Arbegast committing sexual acts against children. In the first similar transaction and the instant crimes, Arbegast’s victims were young children. In the second similar transaction and the instant crimes, Arbegast, who was in a position of authority over the victims, reached his hand under the victims’ clothing and touched their breasts and vaginas.

Under [the] guiding principles [ and] considerations discussed above, we find that, based on the record in this case, the trial court did not abuse [his] discretion in [his] determination that the allegation [s] of child abuse that occurred [11 and 15] years in the past, due to [their] similarity to the present crime and [their] probative value to show [Arbegast’s] unique bent of mind, [were] admissible as similar transaction evidence.

Pareja, 286 Ga. at 121 (trial court did not abuse discretion in admitting evidence of 26-year-old child molestation allegation). See also Roberson v. State, 327 Ga. App. 804, 807-808 (2) (761 SE2d 361) (2014) (acts that occurred more than 20 years before were admissible in prosecution for child molestation and sexual battery); Pendley v. State, 308 Ga. App. 821, 824 (2) (709 SE2d 18) (2011) (similar act of child molestation 30 years in past admissible).

(ii) Arbegast’s age at the time of the first similar transaction.

Arbegast argues that the trial court abused his discretion in admitting evidence of the first similar transaction because he was only 16 years old at the time it occurred. We disagree.

Atrial court should consider a defendant’s youth at the time of a similar transaction when deciding whether to admit such evidence. Dean v. State, 321 Ga. App. 731, 734 (1) (b) (742 SE2d 758) (2013). But Arbegast was 16 years old at the time; he “would have been old enough to be held criminally responsible for his conduct in this [s]tate. See OCGA § 16-3-1 (age 13).” Id. at 735 (1) (b) (citations omitted). See siso Ledford v. State, 313 Ga. App. 389, 390-391 (1) (721 SE2d 585) (2011) (upholding admission of evidence of similar transaction committed when defendant was 11 or 12 years old).

(iii) Sufficiency of the evidence that Arbegast committed the second similar transaction.

Arbegast argues that the evidence was insufficient to prove that he committed the second similar transaction. We disagree because

[a] bsolute proof is not required that a defendant committed the offense in a similar transaction. Instead, the [s]tate is required to prove that [Arbegast] committed the prior act by a preponderance of the evidence. A conviction for the prior act is not required, and it may be proven by circumstantial evidence. In this case, the [s]tate met its burden by presenting [the testimony of the victim].

Dean, 321 Ga. App. at 733-734 (1) (a). See also Roberson, supra, 327 Ga. App. at 807 (2) (similar transaction victims’ testimony alone was sufficient to prove that defendant committed the similar transactions).

(b) Jury instructions.

Arbegast argues that the trial court erred by failing to instruct the jury about the limited purpose of the second similar transaction. We disagree because Arbegast did not request such an instruction.

At the state’s request, the trial court instructed the jury about the limited purpose of the similar transaction evidence before the state presented evidence of the first similar transaction. (Arbegast did not request a limiting instruction before the admission of either similar transaction.) The trial court again instructed the jury about the limited purpose of similar transaction evidence in the final jury instructions. Arbegast did not request such an instruction before the state presented evidence of the second similar transaction, and

[i]n the absence of a request, a trial judge is not required to give a contemporaneous limiting instruction regarding similar transaction evidence. Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request for such a charge. Here, although there is no indication in the transcript that [Arbegast] requested any limiting instruction whatsoever, the trial court gave a limiting instruction before the first similar transaction witness testified. And, the trial court reiterated the limited application of the similar transaction evidence in its final charge to the jury. If [Arbegast] wanted the trial court to instruct the jury on the proper use of the evidence [an] additional time[ ], it was his duty to make that request. The trial court did not err in failing to give, sua sponte, limiting instructions contemporaneously with each witness’ testimony.

Hardeman v. State, 247 Ga. App. 503, 507 (4) (b) (544 SE2d 481) (2001) (citations omitted).

3. State’s failure to disclose similar transaction victim’s contact information.

Arbegast argues that the trial court erred by denying his request for a continuance when the court determined that the second similar transaction was admissible. He argues that the state violated OCGA § 17-16-8 (a) by failing to disclose the victim’s contact information. That statute requires the state, not later than ten days before trial, to

... furnish to the opposing counsel as an officer of the court, in confidence, the names, current locations, dates of birth, and telephone numbers of that party’s witnesses, unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.

The record discloses that, months before trial, the state filed notice of its intent to introduce this similar transaction, listing the prior offense’s case number, date of offense, county of offense, disposition, and victim’s name. Days before trial, the state moved to withhold any other identifying information to protect the victim’s anonymity pursuant to her request. The state disclosed that it had checked the victim’s criminal history and had determined that the victim had never been arrested for or convicted of any crime. At the beginning of the trial, the court granted the state’s motion but directed the state to make the victim available to defense counsel before she testified. The state gave defense counsel a printout showing that the victim had no criminal record. Defense counsel met with the victim prior to her testimony, but she refused to talk to him.

Arbegast argues that this violated the statute and the trial court should have granted him a continuance as a result. We disagree because the purpose of the statute was satisfied. That purpose is

to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview. The trial court may allow an exception to the rule where good cause is shown and counsel is afforded an opportunity to interview the witness. Here, . . . the defense was not surprised because the identity and involvement of the [victim was] made known in discovery.

Rose v. State, 275 Ga. 214, 217 (3) (563 SE2d 865) (2002) (citations and punctuation omitted). And Arbegast has not shown that the trial court abused his discretion in determining that the state had shown good cause to withhold the victim’s contact information.

Even had the court abused his discretion in finding good cause, Arbegast received the remedy to which he was entitled. “[A]bsent a showing of prejudice and bad faith, an interview of the witness is the remedy for failure to comply with the requirement that a witness must be identified prior to trial.” Carter v. State, 253 Ga. App. 795, 797 (1) (560 SE2d 697) (2002) (citation and punctuation omitted; emphasis in original). Here, Arbegast has not shown prejudice or bad faith, and he was given the opportunity to interview the witness.

4. Denial of motion for funds to hire an expert witness.

Arbegast argues that the trial court erred by denying his motion for funds to hire an expert witness to testify about techniques in interviewing children. But he did not make the required showing in the trial court of “why the expert’s services are required, what services are to be performed by such expert, the identity of the expert, and the cost to provide the needed services,” Coalson v. State, 251 Ga. App. 761, 766 (3) (555 SE2d 128) (2001), a fact he concedes in his appellate brief. Consequently, Arbegast has not shown that the trial court abused his discretion. Id. at 767 (3) (trial court did not abuse discretion in denying motion for funds where defendant stated the name of the proposed expert, his hourly rate and maximum fee, and that the expert was needed to determine whether proper interviewing techniques were performed, given the state’s intent to rely on child hearsay, but did not explain what evidence the expert would review or how he would review it, why such evidence was required by the defendant, and how his trial would be rendered fundamentally unfair without the expert’s testimony).

5. Child hearsay.

Arbegast argues that the introduction of the out-of-court statements of K. Q., K. B., and the victim of the first similar transaction pursuant to the applicable Child Hearsay Statute violated his Sixth Amendment right to confront witnesses against him. (As Arbegast was tried before January 1, 2013, the former Child Hearsay Statute, former OCGA § 24-3-16, applies to his case. State v. Dague, 325 Ga. App. 202, 205 (2), n. 6 (750 SE2d 476) (2013).) We conclude that Arbegast waived this issue.

Arbegast did not object to the admission of the child hearsay on any ground (a failure he now claims is an instance of ineffective assistance of trial counsel). And at trial, he affirmatively declined the opportunity to question the victims before the jury. Counsel explained at the motion for new trial hearing that it was a matter of trial strategy; he did not want to confront K. Q. or K. B. because he did not know what they would say. Had he called them — or caused the trial court to call them — he “would have been rolling the dice on what came out.” As for the victim of the first similar transaction, he explained that he did not know what would have been accomplished by having him testify, given that, at the time of trial he no longer remembered anything, a fact that was presented to the jury. “Not only did [Arbegast] fail to object on Sixth Amendment grounds at trial, but he affirmatively declined the opportunity to question the victim [s] before the jury, thereby waiving his right to confront [them].” Walker v. State, 322 Ga. App. 158, 161 (1) (744 SE2d 349) (2013) (citations and punctuation omitted).

6. Ineffective assistance of counsel.

Arbegast raises eight claims of ineffective assistance of counsel. To prevail on these claims, Arbegast is required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Arbegast “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted).

(a) Failure to raise a confrontation clause objection to child hearsay.

Arbegast argues that trial counsel was ineffective for failing to object to the admission of child hearsay as violative of his Sixth Amendment right to confront the witnesses against him. This claim fails because Arbegast cannot show prejudice. As Arbegast concedes, the three witnesses whose testimony was admitted through hearsay — K. Q., K. B., and the victim of the first similar transaction — were all at the courthouse. Had Arbegast objected, the state simply could have called the witnesses to testify. See Hatley v. State, 290 Ga. 480, 484 (I) (722 SE2d 67) (2012) (if defendant objects to admission of child hearsay as violative of his confrontation rights, the state can still introduce the hearsay, as long as it presents child witness at trial).

(b) Failure to object to the child hearsay on the ground that it was not reliable.

Arbegast argues that trial counsel was ineffective for failing to object to the child hearsay on the ground that it was not reliable. At the motion for new trial hearing, trial counsel testified that he did not object to the reliability of the hearsay testimony of K. Q. and K. B. because he was convinced that the trial court would have denied the objection, since K. Q. and K. B. made their statements immediately upon exiting the movie theater. And, he testified, he was convinced that the trial court would have been correct in his ruling.

As for the reliability of the hearsay testimony of the first similar transaction victim, Arbegast failed to question trial counsel at the hearing on his motion for new trial

about his decision-making with regard to this issue. In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for new trial hearing about the subject, it is extremely difficult to overcome this presumption.

Higginbotham v. State, 287 Ga. 187, 190-191 (5) (a) (695 SE2d 210) (2010) (citation and punctuation omitted). “Because appellant failed to question trial counsel about this issue at the hearing on his motion for new trial, any decision not to object is presumed to be a strategic one that does not amount to ineffective assistance.” John v. State, 282 Ga. 792, 796 (7) (c) (653 SE2d 435) (2007) (citation omitted). Strategic decisions are “insufficient to support an ineffective assistance of counsel claim. The decision not to object to certain hearsay... is often the result of reasonable trial strategy. Because [Arbegast] has not made a contrary showing, he has failed to show deficient performance.” Mitchell v. State, 290 Ga. 490, 492 (4) (a) (722 SE2d 705) (2012) (citations and punctuation omitted).

In any event, as to all three hearsay declarants, “it was a reasonable trial strategy not to object [to the hearsay] because if the obj ection had been sustained, the [s] tate could have called the declarants to testify.” Hartsfield v. State, 294 Ga. 883, 889 (3) (b) (757 SE2d 90) (2014) (citations omitted).

(c) Failure to object to testimony about similar transaction victim’s medical diagnoses.

Arbegast argues that trial counsel was ineffective for failing to timely object to testimony of the mother of the first similar transaction victim that a doctor believed his anus had been penetrated and that another doctor diagnosed him with herpes. Counsel did object the next day, after the mother had completed her testimony.

The testimony regarding anal penetration was cumulative of the victim’s own description on the video recording of the acts Arbegast perpetrated on him. Therefore, “there is no reasonable probability that the failure of [Arbegast’s] lawyer to object to [this] testimony affected the outcome of the trial.” Miller v. State, 296 Ga. 9, 13 (4) (b) (764 SE2d 823) (2014) (citations omitted).

As for the herpes testimony, before realizing that he, in fact, had objected the next day, trial counsel testified at the motion for new trial hearing that he failed to object because Arbegast wanted the jury to know that the child had herpes. Counsel explained that “part of [their] strategy [was that the state] could not prove that [Arbegast] ever had genital herpes, and so that child got it from somebody other than [Arbegast], and that’s why [counsel] did not object.” In furtherance of this strategy, Arbegast testified at trial that he did not have herpes, defense counsel called Arbegast’s father as a witness, and he testified that he never had Arbegast treated for herpes, and defense counsel argued in closing that Arbegast did not have herpes, implying that the similar transaction victim must have contracted it from someone else.

Although he may have changed his mind later, trial counsel’s strategic decision not to object to the herpes testimony was reasonable because it supported Arbegast’s claim that he could not have molested the boy.

The problem with [Arbegast’s] argument [that the failure to object to the herpes testimony was deficient,] is that it depends entirely on hindsight. To show deficient performance, a defendant must demonstrate that counsel’s performance was not reasonable under the circumstances confronting counsel at the time, without resorting to hindsight.

Belton v. State, 270 Ga. 671, 673 (3) (512 SE2d 614) (1999) (citation and punctuation omitted). This Arbegast has failed to do.

(d) Failure to present results of Arbegast’s medical test.

Arbegast argues that trial counsel was ineffective for failing to introduce the results of his test for herpes. Trial counsel testified that he did not introduce the test results because they were inconclusive. He testified that he did argue in closing that if Arbegast had herpes, the state would have introduced evidence of it. And, as noted above, both Arbegast and his father testified that Arbegast did not have herpes. “Therefore, as there was already some evidence [that Arbegast did not have herpes] before the jury, it cannot be said that there is a reasonable probability that the trial result would have been different if [the inconclusive test results] had been . . . entered into evidence.” Scandrett v. State, 293 Ga. 602, 605 (4) (748 SE2d 861) (2013) (citation omitted).

(e) Failure to file a speedy trial demand earlier.

Arbegast argues that trial counsel was ineffective for failing to file a speedy trial demand earlier in the proceeding. Trial counsel, who began his representation of Arbegast on March 22, 2006 after Arbegast’s first attorney became ill, did file a motion claiming a violation of Arbegast’s constitutional right to a speedy trial on January 30, 2009. The trial court denied the motion, and we affirmed. Arbegast v. State, 301 Ga. App. 462 (688 SE2d 1) (2009). In reaching our decision, we weighed against Arbegast the delay of 64 months between his arrest and the filing of his motion to dismiss. Id. at 466 (2) (c).

Arbegast argues that trial counsel was ineffective for causing this delay, but the testimony of trial counsel shows that the delay was strategic. When asked why he waited until 2009, counsel responded that there were “a lot of strategy decisions.” One reason was that Arbegast was out on bond from his arrest until 2008. Counsel explained, “If he went to trial and lost, he would not be on bond. He would be in custody. So initially our decision ... included the fact he was not in jail.” Counsel added that his strategy “included the possibility [that] the time could work in his favor.” Counsel also thought it could be beneficial if the victims were older when the case went to trial because young children “certainly have an appeal to jurors that goes beyond what they say.” He testified that Arbegast “was okay with [a] let’s wait and see what happens” approach. Counsel testified that he filed the demand when he did because the prosecutor placed the case on the calendar without notice and he was “blind sided.”

“The decision to file a speedy trial demand is usually tactical in nature. Reasonable trial strategy and tactics do not amount to ineffective assistance of counsel.” Bowling v. State, 289 Ga. 881, 890 (5) (717 SE2d 190) (2011) (citations and punctuation omitted). Arbegast had not shown that counsel’s decision regarding the timing of the speedy trial demand was unreasonable.

(f) Failure to investigate the similar transactions.

Arbegast argues that trial counsel was ineffective because he failed to adequately investigate the case, particularly the similar transactions. He contends that trial counsel admitted that he failed to investigate either similar transaction prior to trial, primarily because he was representing Arbegast pro bono and Arbegast was responsible for all costs. This is a mischaracterization of the testimony. Trial counsel actually testified only that he was not able to go to New York to investigate the similar transactions. But the record discloses that he did take other action to investigate the similar transactions. In any event, Arbegast did not “make any proffer as to what further investigation would have uncovered. He thus cannot establish ineffective assistance of counsel on this ground.” Heard v. State, 296 Ga. 681, 685 (3) (e) (769 SE2d 917) (2015) (citation omitted).

(g) Failure to effectively request funds for an investigator and expert witnesses.

Arbegast argues that trial counsel was ineffective for failing to successfully request funds.for an investigator, an expert in child interview techniques, and a medical expert to testify about herpes. As noted above, Arbegast did not make any proffer as to what further investigation would have uncovered. Nor did he make any proffer as to what an expert in child interview techniques or a medical expert would have testified. With

neither a proffer of what the testimony of the [investigator and] expert [s] would have been nor a showing that the trial court would have abused [his] discretion in denying a motion for funds to hire such an [investigator and] expert [s] . . . [Arbegast] has not shown that he was prejudiced by any trial counsel error in this regard.

Battise v. State, 309 Ga. App. 835, 837 (2) (b) (711 SE2d 390) (2011) (citation and punctuation omitted). He has thus not established ineffective assistance of counsel on this ground. Lemery v. State, 330 Ga. App. 623, 633 (2) (c) (768 SE2d 800) (2015) (appellant failed to show counsel was ineffective when she failed to timely request funds for an independent psychological examination because he failed to present evidence that an independent evaluation would have yielded conclusions that were contrary to those of the first evaluation); Barstad v. State, 329 Ga. App. 214, 219-220 (3) (764 SE2d 453) (2014) (appellant did not show trial counsel was ineffective for failing to request funds to hire an independent DNA expert because, although he argued that a DNA expert would have likely changed the outcome of his trial, he did not call an expert to testify at the motion for new trial hearing and thus did not establish that a DNA expert’s testimony would have yielded a different result); Thornton v. State, 305 Ga. App. 692, 694 (1) (a) (700 SE2d 669) (2010) (defendant failed to show that trial counsel’s failure to obtain a continuance to obtain fingerprint analysis prejudiced him because he did not call an expert witness at the motion for new trial hearing).

Decided June 3, 2015.

Mark H. Yun, for appellant.

Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.

(h) Failure to convey plea offer.

Arbegast argues that trial counsel failed to convey a plea offer. Trial counsel testified at the motion for new trial hearing that he conveyed one plea offer, but he did not remember whether or not he conveyed another plea offer while Arbegast’s first appeal was pending, given that the trial court lacked authority to act at that time and he thought he would win the appeal. Arbegast has not shown prejudice because he has presented no evidence that there was a reasonable likelihood that he would have accepted the state’s offer. Brown v. State, 291 Ga. 892, 899 (4) (734 SE2d 23) (2012).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       As noted, the old Evidence Code applies here. We observe that, in general, the new Evidence Code eliminates bent of mind and course of conduct as permissible purposes for the admission of similar transaction evidence. Algren v. State, 330 Ga. App. 1, 4 (1), n. 13 (764 SE2d 611) (2014). But “in criminal proceedings in which the defendant is accused of a sexual assault] or child molestation], the new Code includes ... provision[s] for the admission of certain prior sexual assaults or child-molestation offenses for hearing on any matters to which they are relevant. See OCGA §§ 24-4-413; 24-4-414.” Id.


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A15A0514.
    WOLFFE et al. v. LENDER TITLE & ESCROW, LLC.
    (773 SE2d 295)
   MCFADDEN, Judge.

Arthur E. Wolffe and Tori F: Talbot, who are proceeding pro se, appeal the dismissal of their action against Lender Title & Escrow LLC. Because their action is an improper collateral attack upon the judgment entered in a related action, we affirm.

Lender Title & Escrow filed a foreclosure action against Wolffe and Talbot in Fulton County Superior Court, and the court entered a default judgment in its favor. Wolffe and Talbot moved to set aside the default judgment on the ground that Talbot had not been personally served. Lender Title & Escrow presented evidence on the issue, and the trial court denied the motion to set aside. Wolffe and Talbot filed an application for discretionary appeal, which we denied. Our Supreme Court denied Wolffe and Talbot’s petition for certiorari.

At some point, Lender Title & Escrow brought a dispossessory action in magistrate court. Wolffe and Talbot then filed this action in superior court, arguing that the trial court erred in entering the default judgment against them in the foreclosure action. They sought to enjoin the dispossessory proceedings and sought damages for wrongful foreclosure and wrongful dispossessory.

Lender Title & Escrow moved to dismiss the action for failure to state a claim upon which relief can be granted, and the trial court granted the motion. Wolffe and Talbot filed this appeal.

1. Failure to rule on motion for default judgment.

Wolffe and Talbot argue that the trial court erred by failing to rule on their motion for a default judgment before addressing Lender Title & Escrow’s motion to dismiss their complaint. We find that they have not shown reversible error.

Lender Title & Escrow was served with Wolffe and Talbot’s complaint on October 17,2013. Its answer was thus due by November 16, 2013. OCGA § 9-11-12 (a). It filed its answer on November 25, 2013, less than 15 days after the answer was due. And in its verified response to the motion for default, Lender Title & Escrow asserted that it paid costs when it filed the answer. The record thus demonstrates that Lender Title & Escrow opened default as a matter of right under OCGA § 9-11-55 (a). Wolffe and Talbot cannot show harm from the trial court’s failure to rule on their motion for default judgment as the motion was due to be denied.

2. Failure to state a claim.

Under OCGA § 9-11-12 (b) (6),

an action can be dismissed upon the merits where the complaint fails to state a claim upon which relief can be granted. Dismissal is appropriate only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. We review the dismissal de novo, construing the complaint’s allegations and all possible inferences therefrom in favor of the plaintiff.

Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of Ga., 297 Ga. App. 28 (676 SE2d 428) (2009) (citation and punctuation omitted).

We conclude that the trial court did not err in dismissing Wolffe and Talbot’s complaint because, at its base, the complaint simply is an attempt to collaterally attack the judgment in the foreclosure action.

[A] judgment is subject to collateral attack only when it is void on its face.... [Wolffe and Talbot have] not shown such deficiency in the [default judgment]. Instead, [they] merely contend^ ] that the trial court’s ruling that [Talbot had been served with the lawsuit] is erroneous on its merits.

Decided June 3, 2015.

Arthur E. Wolffe, pro se.

Tori F. Talbot, pro se.

Clark Caskey, John C. Clark, for appellee.

Nally v. Bartow County Grand Jurors, 280 Ga. 790, 791 (1) (633 SE2d 337) (2006) (citation omitted). See also OCGA § 9-11-60 (a) (“A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose____”); Grand v. Hope, 274 Ga. App. 626, 628 (1) (617 SE2d 593) (2005) (“[U]nder Georgia law, unless a judgment is void on its face, it may not be attacked collaterally. ... This is true regardless of any purported irregularity or error in the judgment.”) (citations and punctuation omitted).

“[T]he averments in the complaint disclose with certainty that [Wolffe and Talbot] would not be entitled to relief under any state of facts which could be proved in support of [their] claim.” Matthews Group & Assoc. v. Wages, 180 Ga. App. 151, 153 (2) (348 SE2d 695) (1986) (citation and punctuation omitted). Accordingly, the trial court did not err in granting the motion to dismiss, and we therefore affirm.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


author: BARNES, Presiding Judge.

text:
    A15A0009.
    WYNN v. THE STATE.
    (773 SE2d 393)
   BARNES, Presiding Judge.

A jury convicted Anthony Wynn of armed robbery and possession of a firearm during the commission of a crime, and he was sentenced as a recidivist to life without parole plus ten years. On appeal, he argues that the evidence against him was insufficient, that the trial court erred in denying his motions for mistrial, that he was deprived of his right to a fair trial because of bad character references, that his trial counsel was ineffective for failing to object to character evidence, and that his sentence was improper. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to the verdict, the record shows that on June 29, 2007, the victim, who worked for Cash America Pawn, noticed a man standing and staring at her while she waited in line at a local bank to cash a $3,000 check for the store. She called her manager as she was leaving the bank, and he was watching the back parking lot when he saw her pull in, followed by a black Jeep that came up fast and parked behind her. The manager immediately called 911 and watched as a man got out of the Jeep, pointed a gun at the victim, took the bank money bag from her, and got back in the Jeep, which left. The manager gave the 911 operator details about the robber’s clothing, the gun, the vehicle, which had no license tag, and the vehicle’s direction of travel. The victim subsequently described the robber’s clothes to the responding officers, describing his hat as dark with some orange on it.

An officer responded to the dispatch about an armed robbery by parking his vehicle in the turn lane of the road facing the direction where the robbers were reportedly heading. He saw a black Jeep come toward him and began to follow it, but the windows were tinted dark and the vehicle had a license tag, so the officer was not sure if he was following the robbers or not. The Jeep’s driver pulled into a convenience store lot, paused by the gas pumps, then parked by the front door. Two men got out, neither of whom matched the description of the robber, and went into the store. The officer ran the tag and waited for backup rather than follow the men inside, but blocked the Jeep with his patrol car. Just before backup arrived, a third man who matched the robber’s description got out of the Jeep and also went into the store. The officer waited until the man, later identified as Sanchez Jones, came out of the store and began to walk away and then arrested him, but by the time the officers searched the store the two men who had gone inside earlier had left through a side door. A K9 officer and his dog tracked the two men for some distance but did not catch them.

Back at the convenience store, the officers saw that the license tag on the Jeep was creased along its top edge, which indicated it had been bent upward as if to conceal the tag numbers. At the police station, Jones waived his Miranda rights and confessed that he had robbed the victim, identifying the other two men involved as “Ant” and “Poochy.” Jones’s cell phone included contact numbers for Ant and “P,” who Jones said was Poochy, and showed that Ant and Jones had exchanged calls earlier that day.

The next day the granddaughter of the black Jeep’s owner came to the police station and told the detective that she had loaned the black Jeep to Wynn, known as “Ant,” the day before. She explained that she had lied to the detective the day before when he called to ask if she knew Jones because she had been stuck at Wynn’s house without her vehicle and had been afraid to say anything. She said that Jones was her boyfriend and worked for Wynn in Wynn’s lawn care business, that her relative lived across the street from Wynn, and that she agreed to exchange vehicles with Wynn the day of the robbery because Wynn said he needed to use the trailer hitch on the black Jeep. She left the black Jeep with Wynn and drove away in his blue Jeep. Later that day, Wynn called the neighbor and asked her to call the woman who had loaned him the black Jeep and tell her to report it stolen. When the neighbor asked Wynn where he was, he said “I’m in the woods. But Sanchez was slow about getting out [of] the car, so he got caught.”

When the woman who lent Wynn her black Jeep called him back, he told her something had happened and asked her to come pick him up. She met him in a store parking lot and drove him home in the blue Jeep he had loaned her. Wynn detained the woman for a time but eventually let her leave in another car that belonged to Wynn. The next day the woman drove Wynn’s car to the police station to talk to the lead detective, who took her statement, confiscated that car, and then drove her to the impound lot where she retrieved her black J eep. A crime scene technician testified that when he executed a search warrant on the black Jeep, he found a bank bag containing $3,000 in five- and twenty-dollar bills, two pistols, sunglasses, a denim ball cap with orange stitching, other clothes, a prescription bottle with the name Timothy Wynn on the label, and a cell phone. The magazines of both pistols were fully loaded, and one of them had a bullet in the chamber. The detective obtained a search warrant for the cell phone found in the black Jeep and eventually identified its owner, who testified that the phone had been stolen from his car at a gas station on the day of the robbery.

Sanchez Jones pled guilty to one count of armed robbery and one count of possession of a firearm during the commission of a crime, and testified that he was the one who robbed the victim using his loaded, cocked .40 caliber handgun, which had been recovered from the black Jeep. Wynn had been driving the car, and it was Wynn’s idea to go to the bank, but both of them had the idea to rob someone. Wynn went into the bank for a while, came out, and said, “I got one,” then followed the victim to the pawn store parking lot. As Jones got out to rob the victim, Wynn said, “Go get her.” When asked why he put a gun to the victim, Jones replied, “Because it were [sic] my turn.” He identified the other gun recovered from the black Jeep as belonging to Wynn.

After notice and a hearing, the trial court allowed the State to introduce similar transaction evidence that Wynn committed a similar robbery a month later, in July 2007, and was arrested in August 2007 after a stakeout at another bank led to a lengthy chase and apprehension. The July 2007 robbery victim testified that as she left the bank with a bank bag containing cash, one man signaled another who then pushed her up against her car and took her money bag. The two men then ran away, and the victim later identified Wynn in a photographic lineup as the man who robbed her.

Six officers from the Forest Park Police Department testified regarding the chase that ultimately led to Wynn’s arrest on August 2, 2007. The officers were conducting a surveillance operation on two different bank branches that day after receiving reports of people being followed from the banks and having money stolen from their vehicles. There was also an arrest warrant out for Wynn and the officers were looking for a man matching Wynn’s description and driving a blue Jeep. An undercover officer saw Wynn get out of a blue Jeep in a bank parking lot and alerted the uniformed patrol officers, who pulled into the lot. Wynn drove out of the lot, and the officers unsuccessfully attempted a traffic stop. Wynn eventually drove into a cul-de-sac and fled his car, leading to a foot chase that finally ended after an officer subdued Wynn with a Taser and then grappled with him until backup arrived and secured him.

1. Wynn contends that the circumstantial evidence presented was insufficient for a rational jury to find him guilty of armed robbery and possession of a firearm during the commission of a crime, arguing that the State presented only the testimony of a co-defendant, corroborated “only” by the co-defendant’s girlfriend and similar transaction evidence, thus failing to prove he was “an accessory before the fact.” That corroboration would be sufficient, but the State also presented the testimony of Wynn’s neighbor about Wynn’s incriminating phone call on the day of the robbery, during which he said that he was in the woods and Jones had been caught because he was too slow. The evidence was sufficient under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See Alatise v. State, 291 Ga. 428, 432 (5) (728 SE2d 592) (2012).

2. In two separate enumerations of error, Wynn contends that the trial court erred in denying his motions for mistrial after witnesses for the State improperly injected bad character evidence three times, and erred in denying his motion for new trial on that and due process grounds.

The trial court gave curative instructions twice after witnesses interjected bad character evidence. The first set of curative instructions covered two incidents. In the first, the lead detective in the current case said on redirect examination that the DeKalb County police had been investigating Wynn for another crime, after Wynn brought out in cross-examination that the detective had not spoken directly to Wynn’s neighbor, but had talked to DeKalb County police officers about the neighbor’s statements. The court held an unreported sidebar at that time, and Wynn subsequently perfected the record regarding the substance of that sidebar, which addressed his first motion for mistrial. Wynn moved for a mistrial again after a Forest Park police officer testified that after Wynn was arrested, he waived his Miranda rights and said the police were “always accusing him of committing crimes because of his past criminal history.”

The trial court denied the motions for mistrial. As to the detective’s answer about DeKalb County crimes, the court noted that Wynn’s neighbor had previously testified about the matter and thus the evidence was cumulative. The court denied the motion for mistrial as to the Forest Park officer’s testimony because it was not directly responsive to the question asked and because the officer was describing Wynn’s voluntary, admissible statement, but gave extensive curative instructions to the jury. The court explained that Wynn was on trial only for the armed robbery and firearm possession charges in the indictment, that the similar transaction evidence should be considered only to the extent it might show identity, state of mind, knowledge, or intent, and that any references to other investigations were totally irrelevant.

The next motion for mistrial came after a detective sergeant with the Forest Park Police Department who was explaining his role in the similar transaction investigation said, “I had a prior case with Mr. Wynn where he was involved in a theft in the city of Forest Park.” Wynn objected and moved for a mistrial after the trial court sent the jury out. After the witness made a proffer about why he brought up the prior theft, the trial court held that the statement was arguably admissible to explain the detective’s conduct but that its prejudicial nature outweighed its benefit. The court thus denied the motion for mistrial, sustained the objection, and instructed the jury again that they were there to focus on the current charges and were to consider the Forest Park similar transaction only for the limited purposes stated, and were to disregard other aspects of the investigation relating to other occurrences.

The State contends that Wynn waived his right to assert error on appeal by failing to move for mistrial contemporaneously in the first instance and failing to renew his motion for mistrial following the trial court’s curative instructions. It is generally true that to preserve appellate review of the denial of a motion for mistrial, the motion must be renewed following curative instructions or the issue is waived. The reasoning behind the waiver rule is because “[i]f the trial court’s curative instructions are not sufficient, defendant should seek additional relief.” (Citation omitted.) Stubbs v. State, 315 Ga. App. 482, 484 (2) (727 SE2d 229) (2012). In Stubbs, however, the defendant specifically approved of the curative instructions to be given and did not renew his motion for mistrial afterward, and thus waived appellate review. In contrast, here the trial court specifically stated on the record on both occasions that Wynn was excepting to the denial of his motion for mistrial and was not waiving it by his response when the court asked if he had suggestions for the proposed curative instructions. Thus the issue was not waived.

Considering the merits of Wynn’s enumeration of error, we note that “[w]hether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d 525) (1999). When determining whether the trial court abused its discretion, we consider the statement itself, other evidence against the accused, and the actions of the trial court and counsel dealing with the impropriety. Martin v. State, 240 Ga. App. 901, 902 (1) (525 SE2d 728) (1999). Considering all of these factors, we conclude that the trial court did not abuse its discretion in denying Wynn’s motion for mistrial.

3. Wynn contends that these and other bad character references during the trial violated his due process right to a fair trial. For example, the owner of the black Jeep testified that Wynn was caught in another armed robbery case, after which the State redirected her responses by confirming that “this [was] the only robbery [she had] information on.” The State then asked if she felt safer once she knew he was caught, and when she answered no, the State asked why not. The witness responded, “Because I knew his entourage he — those are the people that he had to do his work.” Wynn objected, the trial court sustained the objection, then in response to a question about whether she knew if Wynn had something to do with whatever made her feel unsafe, she answered, “Well, actually he had his brother and his nephew come to my job. Before he was caught for this particular robbery ... I was threatened.” Wynn objected again, and the trial court sustained the objection, noting that the witness could testify that people came to her job but “[t] hat’s about as far as she can go with that.” The witness then described running into Wynn’s relatives in the parking lot at her job, where they followed her inside the building. She hid in the bathroom until they left, then immediately left work and never went back.

Several of the similar transaction officers referred to Wynn’s outstanding warrants to explain why they had been watching the banks and why they chased Wynn down the day he was arrested. One testified that they were looking for Wynn because “he had warrants for robbery,” and another explained that he confirmed that he was chasing the right vehicle because he “knew that the ... driver of that vehicle was going to be wanted out of Cobb County and Clayton County for robbery.”

That Wynn was arrested because of another armed robbery was admissible as part of the similar transaction, and the Jeep owner’s gratuitous reference to that arrest was simply cumulative. Further, the trial court sustained the objection to her testimony about the character of Wynn’s entourage. The similar transaction officers’ statements about why they were looking for Wynn “[were] not enough to unduly prejudice the jury.” Hensley v. State, 300 Ga. App. 136, 137 (684 SE2d 673) (2009). “The existence of the underlying warrants] was the reason the police were chasing [Wynn] and without knowing that, the context of the incident would have been incomplete and confusing.” Id.

The trial court’s final charge to the jury instructed it that the indictment and plea formed the issue the jury was to decide, that Wynn was presumed innocent until proven guilty, that the State carried the burden of proving every material allegation in the indictment and every essential element of the crime charged beyond a reasonable doubt, and that the State had the burden to negate or disprove beyond a reasonable doubt any defense raised by the evidence. It instructed the jury on the elements of the crimes of armed robbery with intent to commit theft and possession of a firearm during the commission of a crime, and on the essential element of intent. The trial court also gave a lengthy charge regarding the limited purpose for which evidence of other offenses could be considered by the jury, and reiterated that Wynn was on trial only for the particular offenses charged in the bill of indictment. Considering the trial court’s instructions to the jury, including the curative instructions discussed in Division 2, the fact that evidence related to the events leading to Wynn’s arrest was properly before the jury, and the overwhelming evidence of Wynn’s guilt, we cannot agree that Wynn’s right to due process was violated by the admission of bad character evidence.

4. Wynn contends that his trial counsel was ineffective for failing to object to several of the bad character references discussed above.

[T]o establish ineffectiveness of trial counsel, appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Failure to satisfy either prong of this test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

(Citations and punctuation omitted.) Brown v. State, 321 Ga. App. 765, 766 (743 SE2d 452) (2013).

In his argument, while Wynn cites to the transcript at seven locations, he does not discuss what transpired there or explicate why counsel should have objected. The testimony at some of the cited pages is not bad character evidence. In another instance, previously addressed in Division 3, the State redirected the witness after she testified that Wynn was caught in another armed robbery case. The final two citations in Wynn’s brief are to similar transaction testimony that we also addressed in Division 3. Further, Wynn elicited no testimony in his motion for new trial hearing from his trial counsel regarding the thought process behind these alleged failures to object, asking only whether it was counsel’s usual strategy not to object to any of a State’s witness’s testimony. Counsel responded:

Normally, you know, on every case and every witness that comes up I make a determination whether or not I believe what they had was either important or needed for me to cross-examine them, and if I choose not to cross-examine somebody . . . [it] could be strategy to de-emphasize their testimony, act like they’re not really important and hope the jury gets that same feeling.

“[A] tactical or strategic decision made by counsel cannot form a basis for ineffective assistance of counsel unless it was so patently unreasonable that no competent attorney would have chosen it.” (Citation and punctuation omitted.) McNair v. State, 296 Ga. 181, 183 (2) (766 SE2d 45) (2014). Here, Wynn has not shown that his trial counsel’s failure to object to the testimony discussed above was patently unreasonable and a decision that no competent attorney would have made. “Nor, given the evidence presented, can [Wynn] show [a reasonable probability] that the outcome of his trial would have been different had this ... testimony been excluded.” Id. at 184 (2) (b). Under the circumstances, Wynn has failed to show that his trial counsel was ineffective. Accordingly, we find no merit to this enumeration.

Decided June 8, 2015.

R. Allen Hunt, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

5. Finally, Wynn argues that the trial court erred in sentencing him to life without parole, arguing that the longest period of time prescribed for punishment of armed robbery is life imprisonment, and that life without parole is not a sentencing option. His argument lacks merit.

OCGA § 16-8-41 (b) provides that a person convicted of the offense of armed robbery shall be punished by imprisonment for life or for not less than 10 nor more than 20 years. OCGA § 16-8-41 (d) provides that a person convicted of armed robbery is subject to the recidivist provisions of OCGA §§ 17-10-6.1 and 17-10-7. OCGA § 17-10-7 (a) provides that, upon a second felony conviction, a person shall be sentenced to the longest period of time prescribed for punishment of the second offense, although the sentencing court may probate or suspend the maximum sentence. Under OCGA § 17-10-7 (e), upon a fourth felony conviction, a person must serve the maximum time sentenced “and shall not be eligible for parole until the maximum sentence has been served.”

The State served Wynn with notice of its intent to seek recidivist punishment, and at sentencing introduced evidence of Wynn’s three prior felony convictions. The trial court thus properly sentenced him to life imprisonment without parole on his armed robbery conviction, and in fact had no discretion to do otherwise. Lester v. State, 309 Ga. App. 1, 4-5 (2) (710 SE2d 161) (2011).

Judgment affirmed.

Ray and McMillian, JJ., concur.


text:
    A15A0610.
    POWELL v. THE STATE.
    (773 SE2d 399)
   BARNES, Presiding Judge.

A jury acquitted Evelyn Powell of aggravated assault with a knife but convicted her of family violence battery, family violence terroristic threats and two counts of cruelty to children in the third degree for having committed aggravated assault and battery in the presence of a minor. On appeal, she argues that the trial court erred in allowing the State to introduce similar transaction evidence and that the error was not harmless. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that the 13-year-old victim, her 16-year-old sister, and her 19-year-old sister and her baby lived with their grandparents, Powell and her husband, along with other family members. On the day of the incident that led to the charges against Powell, Powell became angry when the victim would not give her letters addressed to other family members. Powell followed the victim into her bedroom, grabbed her shirt, “jacked [her] up,” and scratched her neck. The victim got loose, and Powell started to walk away, then turned and shoved the victim into a wall. One of the victim’s sisters heard a “boom” and came out of her bathroom to find the victim sitting on the floor crying. Powell went into the kitchen, grabbed a knife, and came toward the victim with it while threatening to kill her. Another sister came out of her room and asked Powell why she was chasing the victim with a knife, and Powell said, “I’m going to kill you, bitch.”

The victim and her sisters all testified that Powell had previously threatened the victim with a knife whenever she became angry, which was often. Powell also accused the victim and her sisters of having inappropriate relations with their grandfather, Powell’s husband, when she was mad. Shortly before this incident, Powell came up behind the victim while she was washing dishes and poked her in the back and leg with a knife because she was angry about something, and the victim went into her sister’s room to get away.

A patrol officer responded to the call about a domestic dispute. The victim had been crying, was shaking, and had “a huge knot on her forehead over her right eye.” Powell said she pushed the victim because she refused to be disrespected, but denied pushing her into a wall. She also denied threatening the victim with a knife, explaining to an investigator that she had been in her bedroom cutting up onions for her soup and stood up holding the knife when she overheard someone talking about her.

Powell’s daughter testified that she called the police on a different occasion because her mother was drunk and throwing things in the kitchen. The responding officer testified that the kitchen was in disarray and the daughter said Powell had pulled a knife on her. Powell would not talk to the officers and began disrobing so they would leave the room. As the officers stood in the front room, the daughter told them that if Powell came at her with a knife again, she was going “to do what I’ve got to do,” and Powell came into the room and said, “Well, I’ll kill her.” Once the officers decided to take Powell into custody, the daughter became very uncooperative, and at trial she denied telling the officer that Powell had pulled a knife and threatened to kill her.

1. While Powell did not assert on appeal that the evidence was insufficient to sustain her conviction, the evidence as outlined above was sufficient to authorize the jury to find her guilty of family violence simple battery, terroristic threats, and cruelty to children in the third degree. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Holsey v. State, 316 Ga. App. 801, 803-804 (1) (729 SE2d 465) (2012); Simmons v. State, 285 Ga. App. 129, 130 (645 SE2d 622) (2007); Price v. State, 281 Ga. App. 844, 845 (1) (637 SE2d 468) (2006).

2. Powell contends that the trial court erred in allowing the State to introduce the similar transaction evidence, arguing that the evidence was not probative of any of the issues it was admitted to prove, and that any probative value was far outweighed by its prejudicial effect.

The State filed a motion to present similar transaction evidence that Powell pled guilty in 1999 to simple assault for throwing a ceramic plate of hot spaghetti at her husband, and Powell filed a motion in limine to keep out any evidence regarding an altercation between Powell and the victim two days before the one that resulted in the charges being tried. After a hearing on the motions, the trial court issued an order granting the State’s motion and denying Powell’s, finding the evidence admissible to show intent, lack of mistake, and motive. Powell’s husband declined to testify, relying on marital privilege and the State did not present evidence regarding the 1999 simple assault. It did introduce evidence that Powell poked the victim with a knife a few days before the July 2010 incident for which she was on trial and that she had threatened her daughter with a knife and been arrested for it in March 2013.

Because Powell’s trial was held after January 1, 2013, Georgia’s new Evidence Code governs this contention. OCGA § 24-4-404 (b) of the new Code provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Moreover, under OCGA § 24-4-403, “[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Evidence of other crimes and acts is admissible if it meets three criteria: “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015). We will affirm a trial court’s decision to admit evidence under OCGA § 24-4-404 absent “a clear abuse of discretion.” Id.

(a) Powell argues that there was no probative value in the evidence of other acts because it was not relevant to show her intent, lack of mistake, or motive. With regard to intent, the State must always prove the intent of a defendant who pleads not guilty. “[Ajbsent affirmative steps by the defendant to remove intent as an issue,” if the state of mind required for both the charged offenses and the other act are the same, the other act is relevant, and the first prong is met. Bradshaw, 296 Ga. at 656-657 (3). Further, Powell told the investigator that she just stood up with the knife in her hand while cutting onions, which would suggest a lack of intent that the State was entitled to rebut. Here, because the charged offenses of battery and terroristic threats and the other acts “involve the same mental state and appellant did not take steps to remove intent as an issue, evidence of the [prior acts] was relevant to establish [her] intent.” Id. at 657. And as the evidence was admissible to prove intent, we need not consider whether it was also admissible for other reasons.

(b) Under the revised Code, “[Relevant evidence maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” and Powell argues that even if the other acts evidence here was relevant, it should have been excluded as too prejudicial. She contends that because the other acts were exactly the same crime she was accused of here — threatening to kill someone with a knife — evidence about them was only probative of a propensity for doing that exact thing. Therefore, she concludes, the risk was great that the jury would judge her on her character for threatening family members with knives instead of on her actions in this case, and the trial court abused its discretion in allowing the evidence.

Our Supreme Court has quoted with approval cases from the United States Court of Appeals for the Eleventh Circuit holding that a trial court’s discretion to exclude evidence of other acts because of undue prejudice “is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.” (Citation and punctuation omitted.) Bradshaw, 296 Ga. at 658. Balancing the prejudicial effect against the probative value “lies within the discretion of the [trial] court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” (Citation and punctuation omitted.) Bradshaw, 296 Ga. at 657-658 (3).

Decided June 8, 2015.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, D. Jared Parrish, Smith N. Wilson, Assistant District Attorneys, for appellee.

Further, the trial court gave the jury limiting instructions before Powell’s daughter testified about the March 2013 incident, charging the jury that to prove that Powell committed the charged offenses, the State was required to show intent, to negate or disprove mistake, and was allowed to show motive. The court further instructed the jury that it was “permitted to consider the evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the defendant is of a character that will commit such crimes.” In its final instructions to the jury, the court gave a lengthy charge on the limited use for which the jury could consider the evidence of other acts.

Here, “[t]he similarity between the two crimes and the facts relating thereto make the former [act] highly probative of the defendant’s intent,” and “the risk of undue prejudice to [Powell] was reduced by the court’s limiting instruction.” United States v. Ramirez, 426 F3d 1344, 1354 (11th Cir. 2005). Given the circumstances, we cannot say that the trial court abused its discretion in finding that the probative value of the similar transaction evidence was not substantially outweighed by its prejudicial effect.

Judgment affirmed.

Ray and McMillian, JJ., concur.


author: Ellington, Presiding Judge.

text:
    A15A0997.
    TRAYLOR v. THE STATE.
    (773 SE2d 403)
   Ellington, Presiding Judge.

A Fulton County jury convicted Dathan Traylor of rape, OCGA § 16-6-1 (a), aggravated sodomy, OCGA § 16-6-2 (a) (2), and two counts of armed robbery, OCGA § 16-8-41 (a). Following the denial of his motion for new trial, Traylor appeals, asserting that the evidence was insufficient to sustain the guilty verdict. He further argues that the trial court erred in denying his motion for mistrial and/or failing to give an appropriate curative instruction following inaccurate testimony related to a pretrial identification procedure and that his trial counsel rendered ineffective assistance. We find no reversible error and, therefore, affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

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

So construed, the evidence set forth at trial shows that at approximately 6:00 a.m. on September 10, 2008, the female victim, M. B., was spending the night with her boyfriend, J. G., at his studio apartment. J. G.’s friend, M. R., was also there that night. The victims were sleeping when J. G., who admittedly sold marijuana, was awakened by a knock at the door. He recognized Earl Manassa, a 14-year-old whom he knew by the street name “Quick,” and directed him to the back door. As he opened the back door, Manassa and two additional men stormed into the apartment and ordered the victims to the floor at gunpoint.

The gunmen began ransacking the apartment as they demanded money, drugs, and guns while at the same time ordering that the victims keep their faces to the ground and not look at them. Manassa used duct tape to secure the hands and feet of the male victims and covered their heads with pillows while both remained lying face down. J. G. was struck twice on the back of the head with a gun during the encounter.

At some point, M. B. asked to use the restroom. As she entered the bathroom and sat on the toilet, one of the assailants followed her in, stood in front of her, and forced her at gunpoint to perform oral sex on him. The same man later took her behind a sheet dividing two areas of the apartment, bent her over a sofa, and had sexual intercourse with her. He wore a condom during the assault.

The assailants ultimately took approximately $1,500 cash from the victims and fled the apartment. M. B. then freed the male victims, and the police were called.

The victims provided the responding detective with Manassa’s street name and described the man who sexually assaulted M. B. as tall and having a slender build and low haircut. As to the third attacker, the victims were unable to provide a description apart from stating that he was dark-skinned and older than the other two. A rape kit was performed on M. B., but no biological evidence from the attacker was recovered or identified.

Ten days after the attack, as the victims were driving near J. G.’s apartment, M. B. saw Traylor sitting on the porch of a house and immediately screamed, “There’s the guy that raped me!” The victims returned to the apartment and called the police, who then came and escorted M. B., in a separate vehicle, back to Traylor’s house. The escorting officer knocked on Traylor’s door, and M. B. confirmed that he was her attacker when he answered and stepped onto the porch. The officer arrested Traylor. M. B. subsequently told the investigating detective that she had seen Traylor at a corner store in the neighborhood the day before the crime.

During the ensuing trial, each of the victims testified and gave details of the robbery. M. B. again identified Traylor as the man who sexually assaulted her. She further testified that she recognized Traylor as someone she had seen at the corner store two days to a week before the attack, although — seemingly contradicting her earlier statement to the detective — she denied that it was the night prior.

Manassa also testified. Upon taking the witness stand, he initially denied that Traylor participated in the crime. After taking a break to speak to his attorney, however, Manassa returned to the court, confirmed that he had accepted a plea offer from the State in exchange for his testimony, and gave his version of events. He testified that Traylor and another man approached him at the corner store seeking to buy marijuana and, knowing that J. G. sold the drug, he took them to J. G.’s apartment. Manassa stated that Traylor and the third man rushed into the apartment and forced him at gunpoint to secure the arms and legs of the male victims with duct tape while they ransacked the apartment looking for money and drugs. He further testified that at one point, Traylor took M. B. into the area obscured by the sheet and, although he could not see what transpired, he stated that M. B. wore “a blank expression” upon her return and it was obvious that “something [had] happened.”

The State concluded its case with the admission of similar transaction evidence. Specifically, a young woman testified that approximately nine years earlier, she was raped by Traylor. The State tendered a certified copy of Traylor’s 2003 guilty plea and conviction on statutory rape and false imprisonment charges related to that incident.

In his defense, Traylor’s counsel tendered by stipulation an affidavit of custody and report from the sheriff’s office, both reflecting that Traylor was in jail from August 29, 2008 until September 9, 2008, the day before the crime. He also presented two witnesses who purported to have seen him at his mother’s house on the night of September 9 and the morning of September 10, although no one could specifically account for his whereabouts during the 6:00 a.m. hour when the crime occurred. And finally, the defense presented the expert testimony of a cognitive psychologist who discussed the weaknesses inherent in eyewitness identifications and explained the negative impact that stress can have on an individual’s ability to accurately recall and retain details of a traumatic event.

The jury convicted Traylor of the charges. This appeal follows.

1. Traylor contends that the evidence that identified him as the perpetrator was insufficient. As to M. B., Traylor argues that his incarceration until the night prior to the attacks renders it impossible for her to have seen him at the corner store before that time. As to J. G., Traylor asserts that, during the years between the robbery and the trial, J. G. consistently said that he had not seen the assailants clearly and could not describe them, and that he only identified Traylor at trial because he was the lone defendant. And as to Manassa, Traylor contends that, after initially testifying that Traylor was not one of the assailants, he reversed himself and identified Traylor only because the prosecutor threatened him with imprisonment if he failed to do so.

But that evidence was presented to the jury and thoroughly explored during cross-examination, and the jurors nonetheless convicted Traylor of the charged offenses. “It is the jury’s prerogative to choose what evidence to believe and what to reject. Issues regarding the credibility of witnesses are in the sole province of the jury and only the jury may analyze what weight will be given each witness’s testimony.” (Citation and punctuation omitted.) Vaughn v. State, 301 Ga. App. 391, 392 (687 SE2d 651) (2009); Powell v. State, 272 Ga. App. 628, 629 (1) (612 SE2d 916) (2005) (holding that the evidence was sufficient to convict the appellant of rape despite the victim’s inability to identify him in court because a second witness positively identified him as the man who entered the victim’s home). It follows that the evidence set forth above authorized a rational trier of fact to find Traylor guilty of each element of the crimes charged and is thus sufficient to support the guilty verdict. See OCGA §§ 16-6-1 (a) (1) (“A person commits the offense of rape when he has carnal knowledge of... [a] female forcibly and against her will.”); 16-6-2 (a) (1), (2) (“A person commits the offense of aggravated sodomy when he or she [performs or submits to any sexual act involving the sex organs of one person and the mouth of another] with force and against the will of the other person[.]”); 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]”).

2. Traylor next argues that the trial court erred in denying his motion for mistrial and/or in giving an inappropriate curative instruction related to an identification by J. G. During his testimony, J. G. admitted that he could not give the responding detective a complete description of anyone other than Manassa immediately following the crime; however, he positively identified Traylor from the witness stand as one of the three gunmen and as the individual who followed M. B. in the bathroom and took her behind the sheet dividing the room. During cross-examination, he also stated that he had identified Manassa from a photograph shown to him prior to trial and said that, on at least one other occasion, he had been shown additional photographs and asked if he could identify either of the other assailants. He testified that he tentatively selected one of the photographs, but was not completely certain it was the man involved in the crime.

Traylor’s counsel immediately requested that the jury be removed and moved for a mistrial on the ground that counsel had not been informed of any pretrial identification procedure involving J. G. beyond that of his identification of Manassa. The prosecuting attorney responded that the law enforcement officials responsible for the investigation insisted that, beyond his identification of Manassa, J. G. was never shown additional photographs or a lineup of any kind prior to trial and speculated that he may be confusing this case with another.

Traylor’s counsel maintained that a mistrial was warranted because the testimony created an ambiguity that resulted in either a potentially tainted in-court identification of Traylor, or the nondisclosure of potentially exculpatory evidence; either way, he could not conduct an effective cross-examination because he had no photographs from which to question the witness. The trial court denied the motion and instead gave the following instruction:

The jury will disregard in its entirety [J. G.’s] in-court identification of this defendant. That is stricken from the record. The witness’s in-court identification of this defendant is stricken. The jury will disregard.

(a) Traylor argues that the trial court erred in denying the motion for mistrial. “The grant or denial of a mistrial is within the trial court’s sound discretion, and the appellate court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial.” (Citation and punctuation omitted.) Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008). Given the ambiguity in the challenged testimony, we cannot say the trial court erred in its determination that any prejudicial effect of J. G.’s testimony, to the extent there was one, could be corrected by the curative instruction. See Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982) (“When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.”) (citation omitted); see also Lowe v. State, 287 Ga. 314, 316 (2) (a) (695 SE2d 623) (2010) (“[T]he Court must presume that the jury followed the trial court’s instruction and disregarded the witness’ statement.”) (citation and punctuation omitted). We find no manifest abuse of discretion.

(b) Traylor contends that the trial court’s curative instruction striking the in-court identification of him was inadequate, specifically arguing that it failed to address J. G.’s allegation of a pretrial identification. We note first that J. G. never definitively testified that he had identified Traylor from a photograph; instead, he stated that he recalled being shown photographs and tentatively selected one as possibly depicting the gunman.

Regardless, prior to giving the curative instruction, the trial court offered to enter a stipulation to the effect that a pretrial identification never happened. Traylor’s counsel refused the offer, however, insisting that he did not want to be “complicit in anything short of a mistrial.” It follows that Traylor cannot now be heard to complain of the court’s failure to do so. See Kitchens v. State, 289 Ga. 242, 246 (4) (710 SE2d 551) (2011) (holding that trial court did not abuse its discretion in denying appellant’s motion for new trial when “[trial] counsel strategically refuse[d] the trial court’s proffer of a curative instruction”); Sullens v. State, 239 Ga. 766, 767 (2) (238 SE2d 864) (1977) (“[S] elf-induced error is not grounds for reversal.”) (citation and punctuation omitted).

3. Finally, Traylor argues that his trial counsel rendered ineffective assistance in two respects. First, he contends that his attorney was deficient in failing to insist that the trial judge provide clarification to the jury in response to questions asked during deliberation. Second, he asserts that counsel was deficient in failing to present a witness to testify as to his incarceration in the days leading up to the crime.

To prevail on his claim of ineffective assistance, Traylor must prove both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for that deficiency, there is a reasonable probability that the outcome of the trial would have been different. Gaines v. State, 285 Ga. App. 654, 657 (3) (647 SE2d 357) (2007). We need not analyze both prongs if Traylor fails to satisfy either one. Id. When reviewing a trial court’s ruling on a claim of ineffective assistance, we uphold the court’s factual findings unless they are clearly erroneous and review its legal conclusions de novo. Bruce v. State, 268 Ga. App. 677, 679 (603 SE2d 33) (2004).

(a) During its deliberations, the jury requested (1) to view the trial transcript of M. B.’s testimony related to her having seen Traylor at the corner store, (2) to read the police report from the day of the crime, and (3) to view a calendar from August and September 2008. The judge, the prosecutor, and Traylor’s counsel were all in agreement that each request should be denied, and that the jury should be instructed to use their collective memories and notes to remember the evidence. After being so instructed, one of the jurors asked if he could view a calendar independently and, after being informed that he could not, stated that he “[did not] remember specific days during that timeframe when [Traylor] was in jail.”

Traylor argues that his counsel’s failure to request that the judge direct the jury’s attention to the stipulated exhibits tendered during the trial — thus reminding them of the dates of his incarceration — constituted deficient performance. But we first note that counsel stated at the time that he tendered the documents that they would “be goingback to the [jurors] for their consideration,” and further emphasized during closing argument that they were “critical piece [s] of evidence” that established Traylor’s alibi and were going back to the jury room for the jurors to review and discuss during deliberations.

Decided June 9, 2015

Dell Jackson, for appellant.

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

Regardless, during the motion for new trial hearing, the trial judge stated explicitly that “[t]here is nothing [counsel] could have said to me to get me to do anything else in response to [the jury’s] questions.” And “[i]t has long been the law in Georgia that a judgment will not be reversed because the trial court declines to aid the jury in recalling the evidence^]” Young v. State, 246 Ga. App. 651, 653 (2) (541 SE2d 670) (2000). See Byrd v. State, 237 Ga. 781, 783 (1) (229 SE2d 631) (1976) (Atrial court may, in its discretion, refuse a jury’s request to rehear certain parts of the evidence.). It follows that counsel’s failure to request that the judge direct the jury as suggested by Traylor does not constitute ineffective assistance, because it affirmatively appears from the record that the trial court in its discretion would have denied such a request. See Head v. State, 288 Ga. App. 205, 208 (2) (653 SE2d 540) (2007) (“Failure to pursue a futile motion does not constitute ineffective assistance.”) (punctuation andfootnote omitted); see also Adorno v. State, 314 Ga. App. 509, 515 (3) (724 SE2d 816) (2012).

(b) Traylor asserts that he was denied effective assistance of counsel because he tendered by stipulation the documents reflecting Traylor’s incarceration rather than calling a witness to testify to that fact. During the motion for new trial hearing, however, Traylor failed to question counsel about the motives behind that decision and, consequently, it is presumed strategic and will not support a claim of ineffective assistance. See Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343) (2005) (“In the absence of testimony to the contrary, counsel’s actions are presumed strategic.”) (citation and punctuation omitted); see also Futch v. State, 286 Ga. 378, 383 (2) (c) (687 SE2d 805) (2010); Carlos v. State, 292 Ga. App. 419, 422 (2) (c) (664 SE2d 808) (2008).

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       In conjunction with this claim of error, Traylor argues that the trial court erred in denying his motion to suppress. In that motion, however, Traylor was seeking to suppress M. B.’s pretrial identification of him and is based upon entirely different grounds. Traylor’s appellate brief contains no citation of authority or argument to support an assertion that the trial court erred in denying the motion to suppress and, consequently, this argument will not be considered on appeal. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); Brown v. State, 302 Ga. App. 272, 274-275 (2) (690 SE2d 907) (2010).

       Traylor also contends that the trial court erred in failing to sua sponte direct the jury’s attention to the exhibits tendered at trial. He failed to support this enumeration of error with citation of authority or argument, however, and it is therefore deemed abandoned. See Court of Appeals Rule 25 (c) (2); Brown, 302 Ga. App. at 274-275 (2).