text:
    A14A0674.
    McDANIEL v. THE STATE.
    (761 SE2d 82)
   Boggs, Judge.

Danny McDaniel appeals from his convictions of mortgage fraud and theft by taking. He contends that he is entitled to a new trial, because (1) he did not knowingly and intelligently waive his Sixth Amendment right to counsel, and (2) the trial court abused its discretion by denying his request for a continuance to hire counsel. For the reasons explained below, we reverse and remand for a new trial.

1. Relying upon Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975) and Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981), McDaniel asserts that the trial court failed to properly advise him of his rights under Faretta, and failed to make a finding as to whether he knowingly and voluntarily waived his right to counsel. In the Supreme Court of Georgia’s oft-cited opinion in Clarke v. Zant, it summarizes the protections afforded a defendant seeking to represent himself as follows:

Faretta[, supra,] held that while a criminal defendant has an absolute right to counsel in any prosecution which could result in imprisonment, the accused also has a fundamental right to represent himself in a state criminal trial “when he voluntarily and intelligently elects to do so.” Faretta at 806. Faretta also states at 835: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘ “he knows what he is doing and his choice is made with eyes open.” ’ Adams v. United States ex rel. McCann, [317 U. S. 269, 279 (63 SCt 236, 87 LE 268) (1942)].” . . . “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case including the background, experience, and conduct of the accused. [Cit.]”

Id. at 195-196. It then held

that in future cases, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.

Id. at 197.

Following the Supreme Court’s opinion in Clarke v. Zant, this court held:

In order to establish a valid waiver,... such waiver must be made with an apprehension of [1] the nature of the charges, [2] the statutory offenses included within them, [3] the range of allowable punishments thereunder, [4] possible defenses to the charges and [5] circumstances in mitigation thereof, and [6] all other facts essential to a broad understanding of the matter.

(Citation and punctuation omitted.) Prater v. State, 220 Ga. App. 506, 509 (469 SE2d 780) (1996). When a defendant argued that a new trial should be granted based upon an absence of evidence in the record showing each of these six factors, the Supreme Court clarified that while “it would be helpful, it is not incumbent upon a trial court to ask each of the questions set forth in Prater. The record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. [Cits.]” Wayne v. State, 269 Ga. 36, 38 (2) (495 SE2d 34) (1998). See also State v. Evans, 285 Ga. 67, 68-69 (673 SE2d 243) (2009).

(a) We find no merit in McDaniel’s claim with regard to the trial court’s alleged failure to make a finding that he knowingly and voluntarily waived his right to counsel. First, in Brooks v. State, 243 Ga. App. 246, 248 (1) (a) (532 SE2d 763) (2000), this court rejected an argument that “a trial judge’s failure to articulate ‘on the record’ a specific finding that a defendant knowingly waived his right to counsel is error per se, regardless of the facts and circumstances of a particular case.” Id. A majority of this court concluded that “while such finding is preferable, its omission is not error when the record as a whole demonstrates a defendant’s knowing waiver. [Cits.]” (Emphasis in original.) Id. Additionally, this court has held that a trial court’s determination of a knowing and voluntary waiver within an order denying a motion for new trial qualifies as a finding on the record. Stevens v. State, 199 Ga. App. 563, 566 (2) (405 SE2d 713) (1991). In this case, the trial court found, in a detailed written order denying McDaniel’s motion for new trial, “that the Defendant knowingly and voluntarily waived his right to counsel after being apprised of the risks of self-representation.”

(b) We now consider whether the particular facts and circumstances of this case show that McDaniel “was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. [Cits.]” Wayne, supra, 269 Ga. at 38 (2). “The state has the burden of demonstrating that the defendant received sufficient information and guidance from the trial court to make a knowing and intelligent waiver of the right to counsel.” (Citations, punctuation and footnote omitted.) Cox v. State, 317 Ga. App. 654, 655 (732 SE2d 321) (2012).

The record shows that McDaniel was arrested in September 2010 on charges relating to mortgage fraud and remained in jail following his arrest. On April 14,2011, he was indicted for residential mortgage fraud and theft by taking. On May 24, 2011, the same day as his arraignment, McDaniel filed a three-page motion to proceed pro se and a two-page motion for discovery material under Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

In his motion to proceed pro se, McDaniel stated that he “originally had hired a local attorney to represent him in these allegations, and due to ineffective assistance in his representations, Defendant fired counsel”; that he “prefers to represent himself, rather than be subjected to more ineffective counsel representations, by either the Public Defender’s office or a local 'Good’ attorney”; that he “has experience in self-representation in state courts in the past, [and] was a law clerk for 3 years in the Federal System, filing many appeals in the District and Circuit Courts, up, and, to[ ], the United States Supreme Court”; that “Defendant’s allegations are not complex, per se, and with the substantive evidence in support of his defense, he feels that upon certain pre-trial motions, these allegations should be dismissed. If not, Defendant is confident that he can survive a jury trial.” He also asked for access to a law library and a copy of the Georgia Rules of Criminal Procedure.

The transcript of a June 28, 2011 status conference begins with the trial court determining that the State did not oppose McDaniel’s motion to proceed pro se. McDaniel then informed the trial court that he did not qualify for a public defender and did not wish to hire counsel. The trial court informed McDaniel that “[t]hese are serious charges obviously” with “serious consequences associated with being found guilty of those offenses,” identified the particular charges against him, asked the State to outline the maximum possible sentences, inquired about McDaniel’s legal training and learned that he had represented himself in a couple of jury trials involving felony offenses in Clayton County Superior Court, and informed him that he would be required to abide by the procedural rules, introduce evidence according to the rules of evidence, and make his own objections. Finally, the trial court advised McDaniel that it would consider appointing counsel to “sit as elbow counsel in order to assist the Court and help you. That’s the term. You would still represent yourself but they can assist you.” The status conference concluded with the State and McDaniel agreeing to explore plea options, and the trial court asking the State to investigate the adequacy of McDaniel’s access to legal resources. The trial court stated at that time, “What I’m going to do is I’m going to put this case again on our calendar for July 19 and at that time we’ll go over in detail your Faretta rights.”

In the July 19, 2011 status conference, McDaniel affirmed again that he had elected to represent himself. The trial court then inquired about the outcome of plea discussions, and the prosecutor informed the court that he

went to see Mr. McDaniel at the jail and we spent actually a great deal of time together going over his case in detail. Probably as much detail as I have ever discussed a case with any pro se defendant as well as any attorney representing a client. I showed him all the paperwork that the State would be seeking to introduce and explained what each piece of paperwork meant. Mr. McDaniel knew what everything was and understood what the State was intending to do.

The State’s attorney also advised McDaniel that it would seek a recidivist sentence and instructed him about the different ways it could prove the prior convictions. McDaniel understood their discussions about a recidivist sentence, and the State’s attorney “felt like Mr. McDaniel understood it as well as anybody I’ve ever explained it to.” In response to questioning by the trial court, McDaniel agreed with the State’s summary of their meeting and acknowledged that he understood how the recidivist statute worked. The status conference concluded with the trial court agreeing that McDaniel should be granted access to the law library in the courthouse. It also informed McDaniel that the case would be on the next criminal jury trial calendar beginning August 8, and set the case for another status conference on August 2. It did not, however, instruct McDaniel about the dangers of self-representation.

In the August 2 status conference, the trial court learned that McDaniel had not yet been granted access to the law library and continued the case from the August 8 jury trial calendar. Contrary to the assertions in the State’s brief, the trial court did not state that it would “continue the case to the next trial calendar.” It merely stated that it would “continue the case.”

When the case was called for trial on September 19, 2011, McDaniel stated that he was not ready to proceed, because “I have pretrial motions that I was getting typed up for the Court which I brought in handwritten today. I didn’t know I was going to be here today. I didn’t get notice of any kind of court hearing.” The Court then stated that it would review handwritten pretrial motions that McDaniel had not yet typed and make sure they were filed-stamped. These motions included a “Special Demurrer Motion to Quash Indictment” and one for “Funds to Hire or Appointment of an Investigator to Aid in the Preparation of his Defense.” After hearing argument from both the State and McDaniel, the trial court denied his motion regarding the indictment. With regard to his request for an investigator, McDaniel stated:

The situation I have is I’m very limited, you know, being incarcerated as far as able to talk to any witnesses that I plan on bringing in for the trial.
The other thing is that I just went through a divorce here when I first came in last year to the jail, which my ex-wife has control over a lot of the paperwork and other things that were on the Internet, information back and forth between me and the alleged victims.
And I have witnesses that are not even in this state, actually live in the northern district of Florida. And I can’t contact these people so I do need a help, and I’m not saying a lot of hours, but I do need the help of an investigator that can make those calls and possibly go and interview these witnesses for me before we subpoena them. I haven’t even brought up a list of witnesses for my case yet.

The State opposed McDaniel’s request, noting that he “filed for reciprocal discovery in a timely fashion,” but had not provided a list of defense witnesses. It also argued that McDaniel

talks about things that are not germane to these issues.... There just are a lot of issues that — he does not have the legal training and has not been able to zero in on the issues at hand.... I know where this is going, I know where the trial is going, and where he intends to take this, and the vast majority of where he intends to take it, the State would object as to relevance and feels as confident as the State can be that that evidence would not be allowed in the criminal proceedings. It is just not relevant. . . .
So I think that what we have here, Judge, is a situation where Mr. McDaniel, by his own choosing, has chosen to represent himself, and that’s fine, but he is just unable to zero in on the issues and so he is attempting to bring everything into court. And I would ask the Court not entertain the idea of giving him more time or assigning more resources for him to go out there and do things that just would not be relevant at trial anyway. Or at least make him proffer as to what he thinks would be relevant, some showing of why he would need this to bring in evidence that would be relevant to the three documents that is the entire State’s case.

After determining that McDaniel had been incarcerated since September 2010, the trial court denied his motion for an investigator without making any further inquiry into the evidence McDaniel sought to obtain. It then informed McDaniel that jury selection would begin at 1:30 p.m.

McDaniel then requested that

since the State would like for me to come in here and basically drop my pants in front of the jury and lose this case without any kind of— not being able to prepare properly for trial, I’m going to have to withdraw as representing myself. I’m going to have to hire an attorney. He’s leaving me no alternative.
There’s no way I’m prepared to come to trial. I don’t have all my witnesses put together. He basically just went over what’s going to happen in the trial. That wasn’t the issue of getting the investigator to help me prepare, so there’s no way I can try this case at this point in time. I’m not ready whatsoever.
I’m not trying to use up any resources of the Court and I appreciate the Court allowing me to go to the law library and protecting my constitutional rights to that end, but I’m just not ready. I didn’t even know I had this hearing today.

The trial court responded:

Well, Mr. McDaniel, I’ve tried on many occasions to explain to you, and have done so at length, that there are risks attendant with self-representation, and you have been given notice on multiple occasions to be here and to be present and to fully present your case, including giving you access to the law library. I find this to be a tactic of delay and we are going to proceed at 1:30.

Based on our review of this evidence, we conclude that the State has failed to meet its burden of demonstrating on the record that McDaniel was made aware of the dangers of representing himself. While it is clear from the record that the trial court intended at some point in the future to fulfill its obligation to ensure that McDaniel made a knowing waiver of his right to counsel, it did not follow through in subsequent hearings. The trial court’s conclusory statement that it had previously warned McDaniel about the risks of self-representation fails to provide details about the information actually provided to McDaniel, and therefore cannot be used to satisfy the State’s burden. See Middleton v. State, 254 Ga. App. 648, 649 (1) (563 SE2d 543) (2002). Cf. Allison v. State, 288 Ga. App. 482, 490 (2) (b) (654 SE2d 628) (2007) (trial court’s conclusory affidavit failed to establish knowing and intelligent waiver of right to jury trial).

(c)We now consider whether harm resulted from the trial court’s failure to fully inform McDaniel of the dangers of proceeding pro se. “To establish harmless error, the State has the burden of showing beyond a reasonable doubt that the error did not contribute to the verdict.” (Citations and footnote omitted.) Middleton, supra, 254 Ga. App. at 650 (2). And this court has “repeatedly found that such error was not harmless where the record showed that the defendant did not mount an able defense — even though the evidence of guilt was ample.” (Citations and footnote omitted; emphasis in original.) Id. at 650-651 (2). Moreover, the availability and actual participation of assisting counsel for a pro se defendant during the trial does not automatically satisfy the State’s burden to prove harmless error beyond a reasonable doubt. See Humphries v. State, 255 Ga. App. 349, 351-352 (1) (565 SE2d 558) (2002) (finding State failed to meet burden of showing harmless error despite participation of counsel at trial); Middleton, supra, 254 Ga. App. at 650 (1) (same).

Here, the record shows that McDaniel was not prepared to try his case and asked for counsel when he learned that the court would not appoint an investigator to assist him in trial preparation while he remained in jail. Immediately before jury selection began, the trial court summoned a public defender already in the courthouse “to sit with Mr. McDaniel and answer any questions he might have.” The record shows that McDaniel made his own opening statement, which was not transcribed other than an objection made by the State to improper argument in an opening statement that was sustained by the trial court. McDaniel also had difficulty speaking loudly enough for the jury to hear him during the trial.

During the State’s direct examination of three witnesses, McDaniel made no objections. When the State’s chief witness testified that McDaniel signed the critical document at issue in his trial, an unauthorized discharge of a deed to secure debt, McDaniel made no objection as to foundation, even though the State did not establish that the witness was familiar with McDaniel’s signature.

During cross-examination of the State’s chief witness, McDaniel elicited information about another loan which he failed to repay, and asserted that this witness allegedly authorized him to sign to a discharge of a deed to secure a debt of $55,000 in exchange for a separate $20,000 investment in a company not owned by the witness. The witness testified during cross-examination:

Danny, that is absolutely false. I have never sent you that document and never gave you that authority. Why would I give you authority to release a $55,000 lien even if you gave the $20,000 directly to me? You give it to somebody else. You didn’t give it to me. And if you had given it to me, I wouldn’t have given you that document or the right to file it. That’s crazy.
You and I were trying to get into a business opportunity which had nothing to do with [the property secured by the deed to secure debt]. If it worked and it allowed you to make your payments on [the property], that’s great. But you never paid, Danny. That’s the bottom line.
Had you given that money directly to me, I never would’ve given you authority to file this document. You still owed me $35,000 if you had given it to me for this property. You didn’t. That was your choice to take that risk and generate some income to make these payments. You didn’t do it. End of story, Danny.

At one point, the witness also stated, ‘You’re trying to combine things that have nothing to do with each other, Danny.” McDaniel also elicited on cross-examination information about a letter he drafted for the witness to sign that the witness stated he refused to sign because the letter contained false statements. The trial court sustained the State’s objection to McDaniel’s attempt to introduce the document into evidence.

Decided June 20, 2014.

Garland, Samuel & Loeb, Patrick R. Sullivan, for appellant.

James L. Wright III, District Attorney, Jordan K. Van Matre, Assistant District Attorney, for appellee.

The State concluded its case with evidence of McDaniel’s admission to the State’s attorney, in the presence of an investigator working for the State, that he signed the discharge of the deed to secure debt for the property at issue. The investigator testified that McDaniel made this admission on June 29 in the county jail, after McDaniel filed his motion to proceed pro se, and the day after the hearing in which the trial court stated its intent to go over his Faretta rights in a July 19 hearing.

Based upon the record before us, we find that the State failed to meet its burden of demonstrating harmless error beyond a reasonable doubt. McDaniel failed to make objections, including a facially valid foundation objection, presented a defense through cross-examination that the State’s witness described as “crazy,” submitted evidence showing that he failed to repay an unrelated loan and created another fraudulent document, and made an incriminating admission to the State after deciding to represent himself pro se without the benefit of a warning from the trial court about the dangers of representing himself. While the public defender — despite having been called immediately before the trial began without any knowledge of the case — made an untranscribed closing argument on behalf of McDaniel, handled the charge conference on his behalf, and assisted McDaniel in the sentencing hearing, we cannot say that these efforts rendered the trial court’s error harmless based upon the particular facts and circumstances of this case. We therefore reverse and remand this case for a new trial. When the case returns to the trial court, McDaniel may choose to be represented by counsel or waive his right to counsel, after being made aware of the dangers of proceeding pro se. Ross v. State, 258 Ga. App. 346, 347 (574 SE2d 406) (2002).

2. Based upon our holding in Division 1, McDaniel’s claim that the trial court erred by denying his motion for a continuance to obtain counsel is rendered moot.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Branch, J., concur.

       The beginning of the status conference was not transcribed.

       The record before us contains no evidence that McDaniel was notified of the September 19 trial date.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A0154.
    CALHOUN v. THE STATE.
    (761 SE2d 91)
   Ray, Judge.

A jury convicted James M. Calhoun of two counts of aggravated child molestation (OCGA § 16-6-4 (c)), two counts of child molestation (OCGA § 16-6-4 (a)), and one count each of aggravated sexual battery (OCGA § 16-6-22.2), false imprisonment (OCGA § 16-5-41), and enticing a child for indecent purposes (OCGA § 16-6-5). On appeal from the trial court’s denial of his motion for new trial, he argues that the trial court erred in denying his request for a continuance after the State proffered new evidence. He also contends that he received ineffective assistance of counsel. He does not challenge the sufficiency of the evidence. For the reasons that follow, we affirm.

On appeal, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Calhoun, who was about sixty years old, committed sexual crimes against two neighbor girls, E. M., who was seven, and G. B., who was twelve. Calhoun gave the girls candy and treats, and sometimes watched them while their mother was out. The girls’ mother believed that he was “like a grandfather” to her children. G. B. made an outcry to her mother after an incident that occurred on Halloween, 2011, when Calhoun made G. B. give him oral sex and she threw up on her Halloween costume. G. B.’s mother called the police. A chemical test of the vomit on G. B.’s Halloween costume revealed the presence of seminal fluid, but did not show spermatozoa that would be eligible for DNA testing.

Police interviewed Calhoun after reading him his rights and after he signed a Miranda waiver form. In the interview, which was played for the jury and admitted without objection, Calhoun stated that although he “did not initiate nothing,” G. B. came to his home and told him, “I want to know how to do it” and “for some reason, I decided to show her.” He told police that he let G. B. feel his penis and put her hands in his pants. She came back two days later and he “let her do it again.” The next time she came back, “I messed around with her.” He said he “was trying to help her out” because she wanted to know how “it” feels. “I just showed her how it feels if she ... has sex” and that he did so by using his hands. He later denied having sex with G. B., but said he touched her genital area with his hands and that they performed oral sex on each other. Although he said that he was trying to help her, he acknowledged that “it wasn’t no favor.”

1. Calhoun argues that the trial court erred in denying his motion for a continuance after the State announced, on the eve of trial, that it would be admitting the results of the seminal fluid test the following day. Calhoun argues that he had “no opportunity” to find rebuttal evidence and witnesses.

[T]he grant or denial of a motion for continuance is within the sound discretion ofthe trial court, OCGA § 17-8-22, and will not be disturbed absent a showing of abuse of that discretion. Mere shortness of time for preparation does not in itself show a denial of the rights of the accused. He must also show harmful error.

(Citations and punctuation omitted.) Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992).

Here, counsel for the State informed the trial court that although he had requested the testing earlier, the Georgia Bureau of Investigation (“GBI”) initially told him it did not accept vomit for DNA testing. He later learned that he could request seminal fluid testing. He did so, but only learned that the test had been performed the day prior to trial, when he notified opposing counsel. The test results did not post until the day of trial. The trial court asked defense counsel how a continuance would benefit her client given Calhoun’s incriminating admissions to police. Defense counsel responded that had she known of the seminal fluid report earlier, she could have investigated other possible perpetrators by interviewing people in the community. The trial court directed the State’s counsel not to mention the test results in opening statements that day. The trial court also decided that, because the test results would not be introduced until the following day, the three investigators in defense counsel’s office would have a day and an evening to interview witnesses from the crime lab and the community and to gather evidence.

Elmore v. State, 269 Ga. 528, 528-529 (2) (501 SE2d 215) (1998) involved fingerprint evidence discovered and disclosed to the defense during trial and admitted the day after disclosure. Our Supreme Court upheld the trial court’s denial of a continuance, finding that, “[t]he State is not precluded from introducing evidence of the result of a scientific test performed immediately prior to or during the trial, absent a showing that the prosecution attempted to circumvent the discovery process.” (Citation and punctuation omitted.) Id. at 529 (2).

As an initial matter, when asking for the continuance, defense counsel stated that she was “not alleging that the State has any bad faith.” Further, the record shows that at a pretrial hearing on April 17, 2012, well before trial on July 16-18, 2012, the State’s attorney had stated that he was seeking DNA testing. The trial court, as noted above, prohibited the State from mentioning those results in its opening statement, thus giving the defense a day for investigation. In Elmore, our Supreme Court found one day to be “a reasonable opportunity to investigate and interview” witnesses. Id.

[T]o warrant a reversal on appeal, the appellant must also show that harm resulted from the denial of the continuance. To show harm, [Calhoun] was required to specifically identify what other evidence or witnesses he would have put forth in his defense if his counsel had been given more time to prepare; speculation and conjecture are not enough.

(Punctuation and footnotes omitted; emphasis supplied.) Wynn v. State, 322 Ga. App. 66, 69 (3) (744 SE2d 64) (2013). At the motion for new trial hearing, Calhoun presented no evidence or testimony implicating a different perpetrator. His trial counsel testified, “I don’t know if — how the expert [on the semen test] would actually have been helpful in this case, but it could have been.” Calhoun’s new counsel at the hearing stated that he had no expert to rebut the State’s evidence. The trial court did not abuse its discretion in denying the motion for continuance. Id. at 70 (3).

2. Calhoun argues that he received ineffective assistance of counsel. In raising ineffective assistance, Calhoun

was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the outcome of the proceedings would have been different. . . . The likelihood of a different result must be substantial, not just conceivable.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). The trial court “makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.” (Footnote omitted.) Sarratt v. State, 299 Ga. App. 568, 569 (2) (683 SE2d 10) (2009). “[W]e independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra.

(a) Calhoun contends that trial counsel was ineffective in failing to seek to suppress his incriminating statements to police pursuant to Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964). On appeal, he argues that he made these admissions because he was concerned about his family waiting for him in the car and because he was on medication that affected his ability to understand what was happening.

However, at the very beginning of his interview with police, after being read his Miranda rights, Calhoun stated unequivocally, “I understand my rights.” At the hearing on his motion for new trial, Calhoun said that after police interviewed him, he told trial counsel that “I was under that medication and I was tired and I was — I just said whatever I needed to say to get out of that room.” Calhoun never stated that the medication affected the voluntariness of his statements or his ability to understand what was happening, nor did he say his statements were coerced.

Trial counsel testified at the motion for new trial hearing that she analyzed Calhoun’s statement for voluntariness.

[H]e came across very calm. He came across like he knew what he was saying. The investigator in the particular case was not very overbearing, in my opinion. There was nothing, after listening to the statement.. . five or six times, to lead me to believe that what he said was not voluntary. He did waive his rights. He also signed a physical form, I believe, saying that it was voluntary.

She also testified she was not concerned that Calhoun’s medication had affected the voluntariness of his statement, and that Calhoun never told her that his statement was involuntary or that police had coerced his statement or offered him any benefit if he confessed.

“The decision of whether to file a motion to suppress is a matter of professional judgment, and we will not judge counsel’s trial strategy in hindsight.” (Citation and punctuation omitted.) Lopez-Jimenez v. State, 317 Ga. App. 868, 872 (2) (b) (733 SE2d 42) (2012). Here, it is clear that counsel carefully assessed the facts and made a strategic decision not to move to suppress because she saw no indication that Calhoun’s statement was involuntary. See Cuvas v. State, 306 Ga. App. 679, 681 (1) (b) (703 SE2d 116) (2010) (counsel’s failure to file meritless motion is not ineffective assistance). “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Id. Accord Davis v. State, 267 Ga. App. 245, 246 (2) (599 SE2d 237) (2004) (failure to file motion to suppress is not ineffective assistance when defendant does not show how motion to suppress would have been successful). Here, Calhoun has failed to show that his statements were involuntary and should have been suppressed.

(b) Calhoun also argues that trial counsel was ineffective in recommending that he not testify in his own defense.

At the motion for new trial hearing, trial counsel testified that she and Calhoun wrote notes back and forth during trial about whether he should testify. She stated that much of what Calhoun wanted to testify about was “impermissible” from an evidentiary standpoint because it involved character evidence such as “the promiscuity of the alleged victims [.]” She and Calhoun both stated that counsel advised him not to testify because of concern about his prior felonies coming in and making him look bad in front of the jury. Trial counsel stated that “I told him that it was up to him to decide... I can’t make that decision for him[,]” and that he made the choice not to testify. Calhoun testified that he knew that he could have testified at trial, but followed his attorney’s advice not to testify.

We find that

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

(Citation and punctuation omitted.) Jacobs v. State, 299 Ga. App. 368, 373 (2) (b) (683 SE2d 64) (2009). The record shows that trial counsel discussed with Calhoun his right to testify and Calhoun chose not to testify after being fully informed. The evidence supports the conclusion that Calhoun failed to meet his burden of showing ineffective assistance. Lupoe v. State, 284 Ga. 576, 579 (3) (d) (669 SE2d 133) (2008).

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

Decided June 23, 2014.

William F Elliott, for appellant.

Layla H. Zon, District Attorney, Agatha K. Romanowski, Assistant District Attorney, for appellee.

       Calhoun was acquitted of one count of child molestation and one count of enticing a child for indecent purposes.

       We note that the trial transcript shows that, in response to questions from the court, Calhoun affirmed several times that he knew he had a right to testify but was not required to, and that he had ample opportunity to discuss with his lawyer whether to testify. At trial, Calhoun asked to speak with counsel about testifying, and the court told him to take all the time he needed. He spoke with counsel, then again stated that he did not wish to testify, affirming that he had made the decision freely, voluntarily, and knowingly See Gibson v. State, 290 Ga. 6, 9 (4) (717 SE2d 447) (2011) (although a court may, as a prophylactic measure, advise defendant of his right to testify and may determine on the record whether the decision is voluntary, knowing, and intentional, courts have no duty to do so where defendant made the decision himself after consulting with counsel).


text:
    A14A0243.
    THE GIBSON LAW FIRM, LLC et al. v. MILLER BUILT HOMES, INC.
    (761 SE2d 95)
   Ray, Judge.

We granted the application of Catherine Gibson McCauley and her law firm, the Gibson Law Firm, LLC (collectively, “the Firm”), for discretionary review of the trial court’s order awarding fees to Miller Built Homes, Inc. (“Miller”) pursuant to OCGA § 9-15-14 (b). For the following reasons, we vacate the award of attorney fees, and remand the case to the trial court for further consideration.

The relevant facts show that Ernest Ajeroh hired the Firm to represent him in three actions in Cherokee County Superior Court arising from the sale of his property to Miller at a foreclosure sale on December 7, 2010. In the instant case, Ajeroh sued Miller and Wells Fargo National Association asserting claims of wrongful foreclosure, breach of contract, invalid sale, breach of good faith and fair dealing, and emotional distress; he also sought damages for “failure to confirm the sale.” Miller filed a motion to dismiss the complaint for failure to state a claim, to which Ajeroh responded, arguing that Miller knew the foreclosure sale was invalid. Ajeroh thereafter dismissed Miller without prejudice on October 27, 2011.

On December 8, 2011, Miller filed a motion for attorney fees and expenses under OCGA § 9-15-14. The Court held a hearing on January 16, 2013, which Ajeroh and McCauley did not attend, and Miller was awarded attorney fees in the amount of $12,106.68. The trial court concluded that the fees were appropriate because Ajeroh, through McCauley, who was his former counsel by that time, had brought an action that lacked substantial justification and was substantially groundless. However, the order awarding fees was vacated after McCauley maintained that she had no notice of the hearing. After a second hearing on April 1, 2013, which was attended by McCauley, the trial court entered the order now on appeal, in which it again awarded attorney fees in the amount of $12,106.68 to Miller, jointly and severally against Ajeroh and McCauley.

In its order awarding attorney fees to Miller, the trial court, referencing its order dismissing claims against Wells Fargo on October 29, 2012, found that Ajeroh failed to provide substantive answers or documents to support his claims, failed to provide documents in response to the request for production of documents, and failed to provide substantive responses to numerous interrogatories. The trial court also found that McCauley had unnecessarily expanded the proceedings by requesting an extension of time to respond to Miller’s motion for attorney fees and then failing to submit any response within the additional time allotted. The trial court concluded that the action lacked substantial justification and was substantially groundless. The Firm filed this timely application from the trial court’s order, which was granted.

OCGA § 9-15-14 (b) provides that the trial court may award “reasonable and necessary attorney’s fees and expenses of litigation” if it finds that an attorney or party brought an action that “lacked substantial justification” because it was “substantially frivolous, substantially groundless, or substantially vexatious”; if the “action, or any part thereof, was interposed for delay or harassment”; or, if the “attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures.” This Court reviews a trial court’s award of attorney fees under OCGA § 9-15-14 (b) under an “abuse of discretion” standard. (Citation omitted.) Fulton County School Dist. v. Hersh, 320 Ga. App. 808, 815 (2) (740 SE2d 760) (2013). Further,

[a]s an officer of the court, a litigator admitted to practice in Georgia is subject to a trial court’s commands and sanctions concerning a litigation in which he has been involved, whether or not he and his firm have already withdrawn in that particular litigation at the time of a finding under OCGA §9-15-14.

(Citations and punctuation omitted.) Andrew, Merritt, Reilly & Smith, LLP v. Remote Accounting Solutions, 277 Ga. App. 245, 246 (626 SE2d 204) (2006).

1. The Firm argues that the trial court abused its discretion in awarding attorney fees under OCGA § 9-15-14 (b) because its order charged the Firm with sanctionable conduct that was not supported by the record.

The Firm first contends, and Miller concedes, that the trial court’s conclusion that the Firm expanded proceedings when it did not timely respond to Miller’s motion for attorney fees was in error. (The record shows that the Firm was given 30 days from February 12, 2013, to file its response, and on March 14,2013, exactly 30 days later, it did file its response.) Contrary to Miller’s assertion, this was not a “harmless misstatement” because the trial court’s order specifically references the Firm’s failure to provide a timely response to the attorney fees motion in its determination that the Firm “unnecessarily expanded proceedings by other improper conduct.”

Further, the Firm contends that the trial court abused its discretion by finding in its order that McCauley’s failure to provide discovery responses unnecessarily expanded the litigation. However, there is no evidence in the record regarding discovery responses to Miller in the instant case. Rather, the trial court’s finding appears to be based on its order dated October 29, 2012, which pertains to Ajeroh’s failure to respond to discovery propounded by co-defendant Wells Fargo, not Miller. Miller had been dismissed as a defendant from the action before it sought any discovery. However, the trial court’s order states that Ajeroh and the Firm failed to provide substantive answers or documentation in response to any Request for Production, and “therefore, this action lacked substantial justification and was substantially groundless.”

Because these findings are not supported by the record, this Court finds that the trial court erred to the extent that it relied on either of these examples of “sanctionable conduct” in its award. See Doster v. Bates, 266 Ga. App. 194, 197 (2) (596 SE2d 699) (2004).

2. The Firm maintains that the trial court also erred in concluding that the action lacked substantial justification. “OCGA § 9-15-14 (b) permits, but does not require, the trial court to award attorney fees” when the requirements of that Code section are met. (Emphasis supplied.) Fox v. City of Cumming, 298 Ga. App. 134, 135 (679 SE2d 365) (2009). The trial court’s order bases its conclusion that the action lacked substantial justification in part on findings not supported by the record, for instance that Ajeroh failed to fully comply with Wells Fargo’s discovery requests (which did not involve Miller) and that the Firm “expanded the proceedings by seeking additional time to respond to [Miller’s attorney fee] motion, but then failing to submit any response within the time allotted.” Given that the trial court based its conclusion that Ajeroh’s action against Miller lacked substantial justification in significant part on incorrect and irrelevant findings, we cannot say that the trial court properly exercised its discretion in awarding attorney fees to Miller under OCGA § 9-15-14 (b).

Decided June 23, 2014.

Catherine Gibson McCauley, for appellants.

3. The Firm argues that the trial court erred because it awarded Miller an impermissible “lump sum” award of attorney fees under OCGA § 9-15-14. We agree.

When awarding attorney fees under OCGA § 9-15-14, “the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. Thus, ‘lump sum’ or unapportioned attorney fees awards are not permitted in Georgia.” (Punctuation and footnote omitted.) Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744 SE2d 72) (2013). Accord Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 242 (2) (d) (620 SE2d 463) (2005) (“the trial court must limit the fees award to those fees incurred because of the sanctionable conduct”) (citation, punctuation and footnote omitted).

In the present case, it appears from the hearing on Miller’s motion for attorney fees that Miller submitted invoices for fees incurred during the litigation. Those invoices are not made part of the appellate record and the amount of attorney fees was not discussed during the hearing. The trial court’s order awards attorney fees to Miller in the amount of $12,106.68; however, the trial court’s order does not indicate how it apportioned its award of fees based on the Firm’s sanctionable conduct.

The trial court’s award of [$12,106.68] may have been reasonable, but the trial court’s order, on its face fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was [$12,106.68] as opposed to any other amount.

(Footnote omitted.) Fedina, supra at 81 (5).

Accordingly, we vacate the order in its entirety and direct the trial court, on remand, to reconsider all issues relating to that award, including whether the Firm engaged in sanctionable conduct, whether Aj eroh’s action against Miller lacked substantial justification, whether attorney fees should be awarded, and for appropriate factfinding with regard to the amount of attorney fees, if any, to be assessed. Fedina, supra.

Judgment vacated and case remanded with direction.

Andrews, P. J., and McFadden, J., concur.

Robinson & Blazer, John E. Robinson, Gregory H. Blazer, for appellee.

       The case against Wells Fargo was dismissed on October 29, 2012.

       In most oases, a party seeking compensation for another party’s failure to comply with discovery requests would follow the procedures set forth in OCGA § 9-11-37.


author: BARNES, Presiding Judge.

text:
    A14A0073.
    HUNT v. THE STATE.
    (761 SE2d 99)
   BARNES, Presiding Judge.

Following the grant of Michael Hunt’s discretionary application, he appeals from the trial court’s order revoking his probation. Upon our review, and upon finding that the alleged child molestation offense was not supported by a preponderance of the evidence, we vacate the trial court’s order and remand the case to the trial court for further proceedings.

OCGA § 42-8-34.1 (b) provides that “[a] court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of [the] evidence the violation or violations alleged.” And this court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.

(Citation and punctuation omitted.) Parker v. State, 275 Ga. App. 35 (619 SE2d 750) (2005). Further, OCGA § 42-8-34.1 (c) provides:

At any revocation hearing, upon proof that the defendant has violated any general provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of. .. any . . . alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.

The trial court sits as the trier of fact in revocation proceedings and resolves all issues of witness credibility. Dugger v. State, 260 Ga. App. 843, 847 (3) (581 SE2d 655) (2003).

The evidence shows that on November 22, 2010, Hunt was sentenced to five years, one to serve and the remainder on probation, for theft by shoplifting. On August 28, 2012, a petition to revoke Hunt’s probation was filed, which alleged that Hunt had committed child molestation on July 19, 2012, and had also failed to pay court-ordered monies.

At the revocation hearing, the probation officer testified that Hunt had two years, five months, and twenty-six days remaining on probation, that he had not reported to the state probation office in almost two years, and that he had not paid any amount toward his assessed fines.

Hunt’s brother testified that he was babysitting a cousin’s four-year-old son while Hunt was at his home; that he walked into his living room and saw the boy’s head between Hunt’s legs; that the boy could have been sleeping; and he told the child to get up. The brother was asked if he remembered writing a statement for the police and telling the officers that, according to the boy, Hunt had told the child to “put it in his mouth.” The brother responded that he had not written a statement, but that the child’s mother had done so. The trial court sustained defense counsel’s objection that what the child allegedly said was hearsay. On cross-examination, the brother testified that Hunt and the child were asleep on the couch and that they were fully clothed. He testified that “nothing bad happened.”

Thereafter, the State asked that Hunt’s probation be revoked for at least two years for the technical violations, including not reporting and not paying the court-ordered fines, and that there was evidence that something inappropriate had occurred between Hunt and the boy. The trial court revoked the remainder of Hunt’s probation — two years, five months, and twenty-six days. On appeal, Hunt argues, and the State concedes, that the evidence was insufficient to show that he committed the offense of child molestation.

1. Proof by a “preponderance of the evidence” means proof by “evidence upon the issues involved in which, while not enough to wholly free the mind from any reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.” Johnson v. Watson, 228 Ga. App. 351, 353 (3) (491 SE2d 827) (1997). To establish the offense of child molestation, the State was required to show by a preponderance of the evidence that Hunt, did an “immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). The competent evidence, nonhearsay presented at the hearing, only demonstrated that Hunt’s brother saw Hunt, who was fully clothed, asleep on a sofa with a fully clothed child lying on his lap. The brother further testified that he did not see them doing anything wrong.

Decided June 24, 2014.

John M. Kraft, for appellant.

Ashley Wright, District Attorney, for appellee.

As the State concedes, this evidence was insufficient, under a preponderance of the evidence standard, to find that Hunt committed the additional offense of child molestation, and thus, the trial court manifestly abused its discretion by revoking Hunt’s probation on that basis.

2. Hunt also contends that the trial court erred in revoking the remainder of his probation, because it could not revoke more than two years of probation due to the remaining technical violation. We agree. Here, the petition alleged that, in addition to committing another felony, Hunt also failed to report or pay court-ordered monies. The trial court’s order merely stated that Hunt had violated his probation “as set forth in the petition” and revoked “in full” the remainder of Hunt’s probation. Thus, the revocation was based on the purported felony as well as the technical violations.

Hunt does not challenge the technical basis for the revocation. Thus, because the trial court based its decision on both grounds alleged in the petition, and the evidence was insufficient to find that Hunt was guilty of the additional felony offense, the only offenses remaining under which his probation could be revoked were the technical violations. Because the trial court could not revoke more than two years of probation on the remaining technical violations, per OCGA § 42-8-34.1 (c), the revocation of Hunt’s probation of two years, five months, and twenty-six days was in error. See Henley v. State, 317 Ga. App. 776, 779-780 (2) (732 SE2d 836) (2012).

Thus, we vacate the trial court’s order to the extent that it found the evidence of child molestation sufficient, and remand the case to the trial court for resentencing in accordance with OCGA § 42-8-34.1 (e).

Judgment vacated and case remanded with direction.

Boggs and Branch, JJ., concur.


text:
    A14A0134.
    PATTERSON v. THE STATE.
    (761 SE2d 101)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Brian Keith Patterson appeals his aggravatedbattery conviction. He contends on appeal that the evidence was insufficient, that trial counsel rendered ineffective assistance, that the trial court erred in admitting opinion testimony as to his intent, and also erred in denying his motion for mistrial after it was shown that the bailiff had repeated conversations with the jury during its deliberations. Upon our review, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia[, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. This same standard applies to our review of the trial court’s denial of [Patterson’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

So viewed, the evidence shows that Patterson and the victim were involved in a relationship and were staying at the home of a friend of the victim. On the night of the incident, the couple argued after the victim told Patterson that she wanted to leave and go to her mother’s home. Patterson told her, “Bitch, you ain’t going nowhere,” and when she “kept saying I’m going home,” he told the victim that he would “set [her] afire.” The victim testified that she thought he was joking and did not believe that he would because he was “not that violent.” The victim walked away from Patterson, then turned back toward him and saw that he was holding an open bottle of alcohol in one hand and a cigarette lighter in the other hand. Patterson poured the alcohol on her head and threw the lighter at the victim, and she “went up in flames.” The friend testified that he heard Patterson “hollering at [the victim] and cussing her and saying all kinds of things to her.” The friend stayed in his bedroom until he heard the victim scream and then ran into the living room where he saw that her hair and body were on fire. He testified that she was lying on the floor and Patterson was on top of her trying to put out the fire. He further testified that Patterson repeatedly said to the victim, “I didn’t mean it. I’m sorry.” The friend called 911, and while they waited, the victim got into the shower in an attempt to put out the fire, then ran out of the apartment to a neighbor’s house for help. The victim was eventually transported to the hospital, where she was treated for approximately three months. She sustained third degree burns over 40-45 percent of her body, and as a result of the burns, she suffered permanent scarring to her face, hands, arms, torso, and back, and the loss of full use of her right hand.

Patterson told police that the victim was “cleaning her crack pipe” with alcohol and that when it exploded the victim caught on fire. The victim also initially told hospital personnel that she had accidentally burned herself when she was cleaning her crack pipe, but told police that Patterson had intentionally set her on fire. The investigating officer testified that he recovered an alcohol bottle from the friend’s apartment that appeared to have been “squeezed” with visible “imprints of a finger ... on the outside of the bottle,” and that he had not recovered a crack pipe at the apartment. The victim admitted at trial that she had used crack cocaine every day for 31 years, including the day of the attack.

1. As an initial matter, we note that Patterson’s brief fails to comply with our rules in several respects. It contains no pagination, it does not provide a statement of the method by which each enumeration of error was preserved for consideration, the one paragraph “Statement of Material Facts” directs this Court to “See trial transcript” without any presentation of the facts below or citations to the record, and the enumerated errors are sporadically, if at all, supported by record citations. See Court of Appeals Rules 24 (e) and 25 (a) (1), (c) (2) (i). “It is not the function of this Court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation and punctuation omitted.) Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 740 (7) (698 SE2d 19) (2010). Given the numerous shortcomings of Patterson’s brief, we would be authorized to dismiss it. See Court of Appeals Rule 7. However, the State has provided sufficient citations to the record in its brief, and we therefore will address the merits of the appeal to the extent possible.

2. Contrary to Patterson’s contention, the evidence in this case was sufficient to find him guilty of aggravated battery. See OCGA § 16-5-24 (a) (“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”).

Where there is a conflict in the testimony of witnesses, their credibility is for the jury, and not this court to decide. On appeal of a criminal conviction, the evidence is to be viewed in the light most favorable to the prosecution (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.

(Citations and punctuation omitted.) Morgan v. State, 195 Ga. App. 52, 53 (392 SE2d 715) (1990). Moreover, the victim’s testimony alone was sufficient to support a finding that Patterson attacked the victim. See former OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). “And any inconsistencies between the victim’s trial testimony and her out-of-court statements were issues of witness credibility that were solely within the province of the jury and play no part in this [C] ourt’s sufficiency of the evidence review.” (Citation and punctuation omitted.) Chamblee v. State, 319 Ga. App. 484, 485 (735 SE2d 810) (2012).

3. Patterson also contends that trial counsel was ineffective for failing to object to the victim’s statement regarding his recent release from prison, that trial counsel did not spend adequate time with him before the trial, and that trial counsel failed to present certain witnesses that Patterson requested. We do not agree.

To prevail on his claim of ineffective assistance of counsel, Patterson “must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). If he fails to meet his burden of proving one prong of the two-prong test, then the other prong need not be reviewed by this Court. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Additionally, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Chapman v. State, 273 Ga. 348, 350 (2) (541 SE2d 634) (2001). “The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). 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.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

Although Patterson contends that trial counsel was ineffective for spending a limited amount of time with him before the trial and for failing to call certain witnesses, neither of these errors is supported with any further argument, citations to the record, or legal authority. Thus, these claims of error are deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2) which provides that an argument is deemed abandoned when it is unsupported by a citation to authority. See Jamale v. State, 302 Ga. App. 140, 144 (3) (690 SE2d 420) (2010).

Patterson also contends that trial counsel was ineffective for not objecting to testimony from the victim that Patterson had recently been “locked up.” During the victim’s testimony she testified that in the past three or four months she and Patterson had recently gotten back together because “he had just got out.” The State responded, “All right. So you had been,” and the victim interrupted and stated, “Because he was locked up for —.” The State interrupted her testimony and asked, “Okay, so you had been with him about three or four months; is that true?”

We have held that the decision not to object to certain testimony at trial to avoid drawing attention to it is a “legitimate trial strategy that falls within the range of reasonable professional conduct.” (Citation omitted.) Durham v. State, 292 Ga. 239, 241-242 (4) (a) (734 SE2d 377) (2012). Patterson’s attorney did not testify at the motion for new trial hearing; therefore “[Patterson] has not overcome the presumption that counsel’s decision fell within a wide range of reasonable, professional conduct.” (Citation and punctuation omitted.) Arellano v. State, 289 Ga. App. 148, 153 (5) (656 SE2d 264) (2008).

4. We also find no merit to Patterson’s contention that the trial court erred in overruling his objection to testimony from the victim that Patterson had intentionally set her on fire. The victim was asked if she had burned herself while cleaning a crack pipe, and when she responded in the negative the State asked her, “Was this an intentional act by [Patterson] against you?” She responded yes, and Patterson objected. The trial court overruled the objection.

Decided June 24, 2014.

“Georgia law generally precludes a witness from testifying as to his or her opinion regarding an ultimate issue in the case because to do so would invade the province of the jury.” (Citation and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 143 (2) (a) (695 SE2d 683) (2010). See former OCGA § 24-9-65. Here, however, contrary to Patterson’s assertion, the victim’s testimony did not invade the province of the jury. See Brown v. State, 275 Ga. App. 99, 105 (4) (a) (619 SE2d 789) (2005) (victim’s testimony that defendant stabbed him on purpose was not inadmissible as invading the province of the jury, where testimony was based on defendant’s physical behavior observed by victim). “A witness who personally observed the event to which she is testifying may state her impressions drawn from, and opinions based upon, the facts and circumstances observed by her.” Smith v. State, 290 Ga. 428, 430 (3) (721 SE2d 892) (2012).

During his testimony, the investigating officer was asked if the victim told him during her interview that the fire was an accident, and he responded that, “She stated that it was intentional.” He later responded in the affirmative when asked if the victim had clearly indicated that she had not accidentally set the fire, but that it was intentional. The officer’s testimony was related to statements provided to him by the victim during his investigation, and in response to Patterson’s contention that the victim had initially told hospital personnel that she had accidentally set herself on fire while cleaning a crack pipe. The officer was never asked for, nor did he ever give, an opinion as to the ultimate issue, i.e., whether Patterson intentionally set the victim afire.

5. Patterson’s contention that the trial court erred in failing to declare a mistrial because of improper juror conduct is deemed abandoned. Although Patterson complains about a purported irregularity in the conduct of a juror, he does not say which juror committed the improper conduct, what the improper conduct was or present any legal argument or relevant authority in support thereof. See Court of Appeals Rule 25 (c) (2) (an argument is deemed abandoned when it is unsupported by a citation to authority); Blanks v. State, 311 Ga. App. 351, 353 (2) (715 SE2d 762) (2011).

Judgment affirmed.

Boggs and Branch, JJ., concur.

Jonathan P. Waters, for appellant.

K. David Cooke, Jr., District Attorney, Shelley T. Milton, Dorothy V. Hull, Assistant District Attorneys, for appellee.

       Patterson was found not guilty of criminal attempt to commit murder.

       Under the new Georgia Evidence Code, effective for trials conducted on or after January 1, 2013, this language is now codified at OCGA § 24-14-8. Patterson’s trial was held in 2010.

       OCGA § 24-9-65 was repealed on January 1, 2013, when Georgia’s new Evidence Code took effect, and was replaced with OCGA § 24-7-701 (a).