author: ELLINGTON, Presiding Judge.

text:
    A14A0908.
    HOPKINS v. THE STATE.
    (761 SE2d 896)
   ELLINGTON, Presiding Judge.

A Dawson County jury found Skylar Hopkins guilty beyond a reasonable doubt of five counts of obtaining a controlled substance by fraud, OCGA § 16-13-43 (a) (3). Following the denial of his motion for a new trial, Hopkins appeals, contending that the only evidence that he had the requisite criminal intent is the uncorroborated testimony of his alleged accomplice and, therefore, that the evidence is insufficient to sustain his convictions. In addition, he contends that the alleged offenses comprised a single act of fraud and, therefore, that the five counts merged. For the reasons explained below, we affirm his convictions, vacate the judgment, and remand for resentencing.

1. Hopkins contends that the testimony of his alleged accomplice that he knowingly participated in her scheme to fraudulently obtain prescription medications was not corroborated by any other evidence and, therefore, that the evidence is insufficient to sustain his convictions.

On appeal from a criminal conviction, the appellate court
view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 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, [the appellate court] must uphold the jury’s verdict.

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

OCGA § 24-14-8 (2013) (formerly OCGA § 24-4-8) provides:

The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness [.]

The corroboration required by this Code section

must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial. The sufficiency of corroborating evidence should be peculiarly a matter for the [finder of fact] to determine.

(Footnote omitted.) Jackson v. State, 246 Ga. App. 731 (1) (541 SE2d 701) (2000). See also Martinez v. State, 303 Ga. App. 71, 74 (1) (692 SE2d 737) (2010) (Slight circumstances may be sufficient to support an inference of collusion between family members.); Palmer v. State, 243 Ga. App. 656, 657 (533 SE2d 802) (2000) (Criminal intent may be inferred by the jury “upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted.”) (footnote omitted).

Construed in favor of the verdict, the record shows that the jury received the following evidence. In 2011, Hopkins’ long-time girlfriend and the mother of his children, Cindy Morgado, began working for a doctor as a medical assistant. Part of her duties included calling in prescriptions to pharmacies at the doctor’s direction. In November 2011, after several weeks of working there, Morgado called in prescriptions for several medications to a pharmacy in Dawson County for herself and for Hopkins. Neither Hopkins nor Morgado was a patient of Morgado’s employer, and the doctor did not write or authorize these prescriptions for them. In addition, Morgado did not have authority to call in prescriptions on her own initiative. When Morgado called in the prescriptions, she used her middle name, Michelle, when identifying herself as her employer’s assistant, to avoid attracting attention to the fact that she was calling in prescriptions for herself.

On November 28, 2011, Morgado called in prescriptions for herself, each with two refills, for the controlled substances Lortab (40 pills), Ambien (30 pills), and Xanax (60 pills); she also called in a prescription for Lortab (40 pills) for Hopkins. At Morgado’s request, Hopkins went to the pharmacy and picked up those prescriptions. On December 8, Morgado ordered a refill for her Lortab prescription, and Hopkins picked it up.

On December 12, Morgado again called in a prescription for one of the medications. The pharmacy called the doctor’s office to verify the prescription and learned that it was not authorized. When Morgado and Hopkins went together to the pharmacy’s drive through window to pick up the medication, the pharmacy technician asked Morgado to come into the store. Morgado panicked and told Hopkins to just drive away, and he did so even though the technician still had Morgado’s identification.

At trial, Morgado testified that, before she began working for the doctor, she and Hopkins had both been prescribed painkillers and other medications and that, by November 2011, they needed more than their treating physicians were willing to authorize. Morgado testified that she and Hopkins together decided to obtain the controlled substances by having her call in prescriptions that were not authorized by her employer.

The relevant counts of the indictment are as follows: Count 1, the Lortab dispensed for Morgado on November 28, 2011; Count 2, the Lortab dispensed for Hopkins on that date; Count 3, the Ambien dispensed for Morgado on that date; Count 5, the Xanax dispensed for Morgado on that date; and Count 8, the Lortab dispensed for Morgado on December 8.

Under OCGA § 16-13-43 (a) (3), “[i]t is unlawful for any person . .. [t]o acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or theft[.]” In this case, only a single witness — Hopkins’ alleged accomplice, Morgado — testified that Hopkins possessed the requisite criminal intent to obtain possession of the controlled substances by fraud and deception. We conclude, however, that the State presented evidence of corroborating circumstances that prove Hopkins’ intent, specifically, that, on November 28, 2011, Hopkins went to the pharmacy to pick up, in addition to medications dispensed for Morgado, Lortab that was clearly labeled as having been dispensed for him, purportedly on the authority of a doctor who had never provided care for him. Further, on December 12, Hopkins fled from the pharmacy when the technician did not release Morgado’s identification or the medication they were trying to pick up. Because there was evidence from a source other than Hopkins’ accomplice that he knew that he was picking up prescription medications for which she had submitted fraudulent orders, a rational trier of fact could find Hopkins guilty beyond a reasonable doubt of committing the offenses as alleged in the indictment. Sosebee v. State, 282 Ga. App. 905, 906 (1) (640 SE2d 379) (2006). See also Callaway v. State, 247 Ga. App. 310, 317-318 (4) (542 SE2d 596) (2000) (The testimony of the defendant chiropractor’s accomplice regarding the defendant’s participation in an insurance fraud scheme was corroborated by his falsification of medical bills and his attempt to have another accomplice sign a bill falsely showing extra office visits.); Hannah v. State, 129 Ga. App. 794, 795 (201 SE2d 339) (1973) (A defendant’s flight may be circumstantial evidence of his guilty knowledge.); Prather v. State, 116 Ga. App. 696 (1) (158 SE2d 291) (1967) (accord).

2. Hopkins contends that the offenses charged in the five counts all involved just a single act of fraud, that is, Morgado’s November 28, 2011 telephone call to the pharmacy posing as someone with authority, that the offenses therefore merged, and that the trial court erred in imposing a separate sentence as to each count.

OCGA § 16-1-7 prohibits multiple convictions if “[o]ne crime is included in the other.” “Under the express terms of that statute, however, the rule prohibiting more than one conviction if one crime is included in the other does not apply unless the same conduct of the accused establishes the commission of multiple crimes.” (Citation and punctuation omitted.) Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011).

If the same conduct established the commission of both offenses, it is generally necessary to take the next step in the analysis by applying the “required evidence” test ... for determining when one offense is included in another: [a] single act may constitute an offense which violates more than one statute, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

(Citations and punctuation omitted.) Id. at 72 (l). Whether two offenses are merged for sentencing is a question of law to which we apply a “plain legal error” standard of review. Culbreath v. State, 328 Ga. App. 153 (761 SE2d 557) (2014).

As noted in Division 1, supra, OCGA § 16-13-43 (a) (3) makes it unlawful “for any person . . . [t]o acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or theft[.]” The evidence showed that, on November 28, 2011, Hopkins acquired possession of three different controlled substances: Lortab (some dispensed for Morgado and some for himself), Ambien, and Xanax and that, on December 8,2011, he again acquired possession of Lortab.

(a) Different controlled substances. Although Morgado’s conduct in fraudulently representing to the pharmacist that she had a doctor’s authority to call in the prescriptions occurred in a single telephone call on November 28, we conclude that Hopkins’ conduct of acquiring possession of the several different controlled substances was not the same conduct for the purpose of deciding whether the offenses merged. That is, acquiring possession of Lortab is not the same conduct as acquiring possession of Ambien, and neither are the same as acquiring possession of Xanax. See Ahmad v. State, 312 Ga. App. 703, 708-709 (3) (719 SE2d 563) (2011) (Offenses of violating OCGA § 16-13-31 (e) by trafficking in methamphetamine, a Schedule II drug under OCGA § 16-13-26, and violating OCGA § 16-13-31.1 (a) by trafficking in 3,4-methylenedioxymethamphetamine, a/k/aMDMA or Ecstasy, a Schedule I drug under OCGA § 16-13-25, did not merge, even though the drugs were mixed together and the trafficking crimes were accomplished by the same conduct of the defendant. “Each crime required proof of a fact which the other did not, as there was no evidence that chemical compounds or elements were shared between the drugs.”) (footnote omitted). Accordingly, Count 3 (Ambien) did not merge with Counts 1, 2, or 8 (Lortab) or with Count 5 (Xanax). Likewise, Count 5 (Xanax) did not merge with Counts 1, 2, or 8 (Lortab) or with Count 3 (Ambien).

(b) Same controlled substance, different dates and acts of acquisition. Although Morgado’s conduct in fraudulently representing to the pharmacist that she had a doctor’s authority to call in the prescriptions for Lortab occurred in a single telephone call on November 28, we conclude that Hopkins’ conduct of acquiring possession of Lortab by going to the pharmacy to pick up the prescriptions on that date and on a separate occasion ten days later was not the same conduct for the purpose of deciding whether the offenses merged. Accordingly, Count 8 (Lortab acquired on December 8) did not merge with Counts 1 or 2 (Lortab acquired on November 28). See Robertson v. State, 306 Ga. App. 721, 725-726 (4) (703 SE2d 343) (2010) (Where the defendant sold a quantity of cocaine to a confidential informant, while retaining possession of another discrete portion of cocaine as he drove away from the location of the sale, the offenses of selling one portion of cocaine and possessing the other portion of cocaine did not merge.); Kinchen v. State, 265 Ga. App. 474, 475 (594 SE2d 686) (2004) (Where the defendant took several pounds of marijuana from a larger quantity he had in his home and drove to another county, where he attempted to sell it to an undercover officer, the offense of possessing the marijuana that he tried to sell did not merge with the offense of possessing the separate quantity of marijuana that was seized from his home; the defendant “engaged in two separate courses of conduct at different times and locations with distinct quantities of contraband, even though he may have at some earlier time possessed all the marijuana in his home.”); Standi v. State, 155 Ga. App. 731 (2) (272 SE2d 511) (1980) (Where the defendant sold an obscene magazine to the same buyer on the same date at two different times and at two different locations, the offenses did not merge.).

Decided August 6, 2014 —

Reconsideration denied August 19, 2014.

Long D. Vo, for appellant.

Lee Darragh, District Attorney, Randall C. Schonder, Conley J. Greer, Assistant District Attorneys, for appellee.

(c) Same controlled substance, same date and act of acquisition, different putative patients. Finally, although the prescriptions for Lortab that Hopkins picked up on November 28 were purportedly for two different patients, we conclude that Hopkins’ single act of going to the pharmacy to pick up Lortab on that date was the same conduct for the purpose of deciding whether the offenses merged. Accordingly, Counts 1 and 2 merged, and the trial court erred in imposing separate sentences as to those counts. Cf. Robertson v. State, 306 Ga. App. at 725-726 (4); Kinchen v. State, 265 Ga. App. at 475; Morgan v. State, 220 Ga. App. 198, 199-200 (469 SE2d 340) (1996). Accordingly, the judgment as entered must be vacated and the case remanded for resentencing.

Judgment affirmed in part and vacated in part, and case remanded for resentencing. Phipps, C. J., concurs.

McMillian, J., concurs in Divisions 1, 2 (a) and 2 (b) and in judgment only in Division 2 (c).

       We note that Hopkins’ trial took place in April 2013, after the effective date of Georgia’s new Evidence Code, which applies to any motion, hearing or trial commenced on or after January 1, 2013. Ga. L. 2011, p. 99, §§ 2,101. “[T]he provisions of former OCGA § 24-4-8 were carried forward into the new Evidence Code and now can be found at OCGA § 24-14-8.” McKibbins v. State, 293 Ga. 843, 846, n. 9 (750 SE2d 314) (2013).

       In addition, she called in prescriptions for herself for Cipro and Phenergan, hut the evidence showed that these are not controlled substances, and the trial court entered a directed verdict of acquittal on the corresponding charges.

       See also Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A2351.
    GEICO GENERAL INSURANCE COMPANY v. HOSPITAL AUTHORITY OF CLARKE COUNTY et al.
    (763 SE2d 132)
    Decided August 19, 2014.

      Carlock Copeland & Stair, Jason W. Hammer, for appellant.

      Douglas T. Gibson, MiyongM. Park, Lewis, Brisbois, Bisgaard & Smith, Kristopher R. Alderman, for appellees.
   DOYLE, Presiding Judge.

In Geico Gen. Ins. Co. v. Hosp. Auth. of Clarke County, 319 Ga. App. 741 (738 SE2d 325) (2013), this Court reversed the trial court’s denial of the defendant’s motionfor summary judgment. The Supreme Court of Georgia reversed that opinion in Hosp. Auth. of Clarke County v. Geico Gen. Ins. Co., 294 Ga. 477 (754 SE2d 358) (2014). We therefore vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and affirm the judgment of the trial court.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.


author: MCMlLLIAN, Judge.

text:
    A14A1095.
    DAVENPORT v. THE STATE.
    (763 SE2d 130)
   MCMlLLIAN, Judge.

We briefly summarize the procedural and factual history in this case, which is set out more fully in Davenport v. State, 313 Ga. App. 745 (722 SE2d 457) (2012) ("Davenport III") and Davenport v. State, 303 Ga. App. 401 (693 SE2d 510) (2010) (“Davenport I”).

Following her conviction for driving under the influence of alcohol per se, Davenport filed an appeal to this Court, arguing that the trial court erred by denying her motion for an order authorizing the issuance of a subpoena to an out-of-state witness under the provisions of the Uniform Act to Secure the Attendance of Witnesses From Without the State. We affirmed the trial court’s denial of Davenport’s motion, finding no error in the trial court’s determination that the out-of-state witness was not “a necessary and material witness to the case.” Davenport I, 303 Ga. App. at 402. However, our Supreme Court vacated our judgment and remanded to this Court with direction in Davenport v. State, 289 Ga. 399, 404 (711 SE2d 699) (2011) (“Davenport II”), and consistent with that opinion, we remanded Davenport’s case to the trial court to “apply the correct statute and revisit Davenport’s motion for an order authorizing the issuance of the out-of-state subpoena.” Davenport III, 313 Ga. App. at 745. Following a hearing at which it was agreed that the trial court would render its decision based on the evidence previously admitted on this issue, the trial court once again denied Davenport’s motion. Davenport filed a motion for reconsideration, arguing that the trial court failed to consider the constitutional challenges she raised in her original motion. The trial court denied Davenport’s motion for reconsideration without elaboration, and Davenport timely filed the present appeal. As more fully set forth below, we now affirm.

Davenport argues in her sole enumeration of error on appeal that “[t]he trial court erred by ruling that [she failed to] make a sufficient factual showing to justify the issuance of an out-of-state subpoena.” However, Davenport does not present any argument in support of this enumeration and does not challenge the trial court’s finding that the evidence Davenport presented to support a finding of materiality was “speculative.” Thus, we deem this enumeration to be abandoned, and that portion of the trial court’s order stands affirmed. See Court of Appeals Rule 25 (c) (2). Further, she does not appear to reassert the contention urged in her motion for reconsideration that the trial court in this case required a higher standard of proof than the standard set out by the Supreme Court in Davenport II, 289 Ga. at 400, except to mention in her “Statement of the Case” that she raised this issue in her motion for reconsideration.

Instead, Davenport argues that the refusal of the trial court to grant her a certificate of materiality violated her confrontation, due process and compulsory process rights, thereby depriving her of her right to a fair trial. However, “[i]n light of the fact that the trial court properly exercised its discretion under former OCGA § 24-10-94 (a) in finding that the out-of-state witness was not a ‘material witness,’ [Davenport]’s argument that [she] was denied [her] right to compulsory process is entirely without merit.” Cronkite v. State, 293 Ga. 476, 479, n. 4 (745 SE2d 591) (2013). See also Davenport II, 289 Ga. at 400-401; Phillips v. State, 324 Ga. App. 728, 732-733 (751 SE2d 526) (2013). Likewise, Davenport’s contention that her Confrontation Clause rights have been violated has also been decided against her. Phillips, 324 Ga. App. at 733. Further, to the extent this argument can be construed as an attack on the constitutionality of the Uniform Act, we are precluded from reviewing this contention because the trial court did not specifically rule on this issue. Young v. State, 324 Ga. App. 127, 132 (2) (749 SE2d 423) (2013). Accordingly, the trial court’s order is affirmed.

Decided August 19, 2014 —

William C. Head, Ashleigh B. Merchant, for appellant.

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

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       We note that at all relevant times here this Act was codified at OCGA §§ 24-10-90 to 24-10-97, but effective January 2013, those provisions are now contained in OCGA §§ 24-13-90 to 24-13-97.

       Davenport’s motion for reconsideration did not extend the time for filing her notice of appeal, but Davenport’s notice of appeal was timely because it was filed within 30 days of the trial court’s order denying her motion for a certificate of materiality. See OCGA § 5-6-38 (a); Davenport III, 313 Ga. App. at 745-746 (“If the trial court determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that Davenport may file a timely appeal from that determination.”); Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000).


author: RAY, Judge.

text:
    A14A0933.
    HARRIS v. THE STATE.
    (763 SE2d 133)
   RAY, Judge.

Following a bench trial, Gary Jerome Harris was convicted of burglary (OCGA § 16-7-1) andfelony theft bytaking(OCGA § 16-8-2). He appeals from his convictions and the denial of his motion for new trial, contending that the evidence was insufficient to support his conviction of burglary and that the State failed to prove that he unlawfully took automobile parts exceeding $100 in value. We affirm the convictions. However, we find that the evidence was insufficient to prove that Harris had stolen automobile parts that exceeded $100 in value. Therefore, we vacate the felony sentence for the theft by taking offense and remand the case with direction that the conviction and sentence be entered for misdemeanor theft by taking.

In determining sufficiency of the evidence, the proper inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Stokes v. State, 317 Ga. App. 435, 436 (731 SE2d 118) (2012).

In a bench trial, the trial court sits as the trier of fact and its findings cannot be set aside unless they are clearly erroneous. In Georgia, it is well-settled that the clearly erroneous standard for reviewing findings of fact is equivalent to the highly deferential any evidence test.

(Citations and punctuation omitted.) Id.

The evidence shows that Richard Dozier owned a 31-acre plot of land located in McDuffie County where he once operated an automobile recycling business known as Yodo’s, Incorporated. On that land were two buildings in which he stored a substantial inventory of used automobile parts, including stockpiled radiators. Yodo’s had closed several months prior to the incident at issue here, and Dozier secured the property with a fence and two padlocked gates. He testified that only his employees had permission to go onto the property.

On the morning of May 31, 2012, two of Dozier’s employees went to the property to perform a security check. As they neared the front entrance, they observed a black Saturn inside the premises leaving through the back gate of the property. When the employees went to intercept the vehicle, the vehicle swerved off the side of the road to get around the employees’ van and then drove away. As it did, one of the employees recognized the driver as a man known by the nickname “Easy Fly,” later identified as Harris. The employees also observed about five or six radiators in the back of the vehicle of a same or similar nature to those stored in the warehouse.

Upon investigation of the premises, the padlock on the rear gate of the property had been cut with bolt cutters and had been reinserted to appear locked, commonly referred to by law enforcement as a “dummy” lock. Multiple tire tracks led through that gate and to a loading dock located in the rear of one of the buildings. The point of entry for the building, a roll-up door, showed signs of forced entry. An examination of dust on the floor of the building indicated where items had previously sat. Dozier testified that he estimated over $6,000 worth of automotive parts were missing from his property, including tires, rims, and flywheels, but he could not testify that all of it was taken on the incident date. Among the missing automobile parts were numerous radiators. With regard to the radiators specifically, Dozier estimated their value based off past sales, which depended on the type of radiator, which averaged about $15 per radiator.

Following his arrest, Harris sought out Ronnie Lindsey, the employee who had identified Harris to law enforcement. Harris pleaded with Lindsey to “tell them people something different; you got to change your story; you got to tell them it wasn’t me.” When Lindsey refused, Harris told him that “[t]he only thing I ever went there and got was a battery. ... I bet y’all didn’t even miss the batteries.” Lindsey recalled that a large amount of batteries were missing.

1. Harris contends that the evidence was insufficient for a rational trier of fact to convict him of burglary. We disagree.

A person commits the offense of burglary when he enters the building of another, without authority, and with the intent to commit a theft therein. OCGA § 16-7-1 (c). The evidence, taken together, placed Harris at Dozier’s warehouse and in possession of stolen property. Where a defendant is in recent possession of stolen goods, his guilt may be inferred where the evidence independently establishes an unauthorized entry. Myles v. State, 186 Ga. App. 817, 817 (2) (368 SE2d 574) (1988). “[T]he nearer the possession to the time of the theft, the stronger will be the inference of guilt.” (Citation and punctuation omitted.) Rivera v. State, 293 Ga. App. 215, 217 (666 SE2d 739) (2008). Furthermore, “evidence of a defendant’s attempt to influence or intimidate a witness can serve as circumstantial evidence of guilt.” (Citations omitted.) Dukes v. State, 290 Ga. 486, 488 (3) (722 SE2d 701) (2012).

First, witnesses observed five or six radiators in the back seat of Harris’s car immediately after Harris exited the premises. While these radiators were not definitively traced back to Dozier’s building, two of Dozier’s employees recognized them as being similar to those that were missing from the warehouse. A “dummy” lock was found on the back gate, and tire tracks led up to the rear of the buildings where a roll-up door showed signs of forced entry. Two witnesses watched Harris drive his vehicle from that side of the building to a rear gate. The patterns of dust collected inside the warehouse indicated where items had been removed, specifically surrounding where radiators had sat. Lastly, Harris incriminated himself by swerving around the employees’ van when leaving the property, by showing up at Lindsey’s residence attempting to influence him into changing his story, and by making admissions which inculpated him in the crime.

We find that the above evidence was sufficient to authorize a rational trier of fact to find Harris guilty of burglary beyond a reasonable doubt.

2. Harris contends that the State failed to prove that he unlawfully took automobile parts exceeding $100 in value. Specifically, he argues that (1) the State only proved the taking of some radiators, not any other items; and (2) the number and value of the radiators that were taken was speculative. We agree, at least to the extent that the State did not prove that Harris stole automobile parts in excess of $100.

This case proceeded under former OCGA § 16-8-12 (a) (5) (A), which provided that a person shall be convicted of felony theft by taking if he unlawfully takes motor vehicle parts which exceed $100 in value. The value of the stolen property is not an element of the offense, but it is relevant for sentencing purposes. Porter v. State, 308 Ga. App. 121, 122 (2) (706 SE2d 620) (2011). Thus, under former OCGA § 16-8-12, a person convicted of theft by taking of motor vehicle parts shall be convicted of a misdemeanor if the value does not exceed $100.

The trial judge convicted Harris of stealing property valued at $6,775 and, as a part of his sentence, ordered Harris to pay restitution in that amount. In ruling on the motion for new trial, however, the trial judge granted a “new trial” with regard to restitution. However, he denied the motion with regard to Harris’s conviction of felony theft by taking, based on the number of radiators observed in his possession, the value of them assessed by Dozier, and Harris’s statements to Lindsey that he had taken a battery or batteries at some point.

Circumstantial evidence is sufficient to support a conviction when it excludes every reasonable hypothesis except the guilt of the accused. Patterson v. State, 159 Ga. App. 290, 294 (283 SE2d 294) (1981). The State need not remove every possibility of innocence of the crime charged. See Rivera, supra at 216. Questions of reasonableness are generally decided by trier of fact. Id.

The State argues that the evidence that Harris left through a back gate with radiators and the presence of multiple tire tracks in the area which indicated that multiple trips had been made was sufficient to prove that Harris stole all of the other items that were reported missing from the warehouse. While this evidence may prove that someone had made multiple trips to the warehouse, the only items observed in Harris’s possession were the radiators. We find that the evidence is insufficient for a rational trier of fact to find that Harris stole all of the items that were reported missing from the warehouse.

However, the evidence is sufficient to show that appellant unlawfully took radiators and at least one battery. Appellant was present on Dozier’s property and in possession of radiators similar to those that had been taken from the warehouse, and he later told a witness that “the only thing I ever went there and got was a battery.” Thus, the issue is whether there is any evidence to support the trial court’s finding that these particular items exceeded $100 in value.

Decided August 20, 2014.

S. Cindy Wang, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

The proper measure of value “is the fair cash market value either at the time and place of the theft or at any time during the receipt or concealment of the property.” (Punctuation and footnote omitted.) Porter, supra at 123 (2) (fair market value can be calculated by experience in buying that property or everyday knowledge of that property’s value, but not where a property owner gave no reason for her opinion as to current fair market value of stolen property).

Here, the State presented evidence as to the fair market value of the radiators. Dozier testified to the process he used to calculate the value of the radiators, which was based on his experience dealing with such items in the ordinary course of his former business. He estimated the sale price between $5 and $55, depending on the type of radiator, but that the average fair market price was around $15. Because his calculation is based on his experience in selling radiators, it is sufficient to determine value. The evidence shows that Harris had five or six radiators in his car, and at $15 per radiator, the overall value for these items would be $75-$90. The theft of these radiators falls short of the $100 threshold for a felony.

Furthermore, the trial court’s inclusion of batteries in determining the value of the items taken was error. Even if Harris did steal one or more batteries at some point, the State failed to present any evidence whatsoever regarding the value or quantity of the batteries alleged to have been taken.

Although Harris was properly convicted of theft by taking, the evidence was insufficient to prove that the theft was of a felony amount. Accordingly, we must vacate the felony sentence for the theft by taking offense and remand the case with direction that a conviction and sentence be entered for misdemeanor theft by taking.

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

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

       The 2012 amendment, effective July 1,2012, deleted the clause “if the property which was the subject of the theft was a motor vehicle or was a motor vehicle part or component which exceeded $100.00 in value.”

       In sustaining the felony theft by taking conviction, the trial judge found that “[t]he value of batteries added to the value of the radiators would have exceeded $100.00 and supported Defendant’s guilt of theft by taking motor vehicle parts exceeding $100.00.”


text:
    A14A1300.
    YOUNG v. THE STATE.
    (763 SE2d 137)
   ELLINGTON, Presiding Judge.

A Chatham County jury found Daqwan Young guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 (a), and possession ofa firearm during the commission of a crime, OCGA § 16-11-106 (b). Following the denial of his motion for a new trial, Young appeals, contending he received ineffective assistance of counsel. For the reasons explained below, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. On April 8, 2011, the victim visited his friend Rocregus Cummings. After the two men smoked marijuana and then went to a pizza restaurant, Cummings suggested they go to visit Quayshaun Floyd, who was at his girlfriend’s apartment. At that apartment, the three men smoked marijuana and listened to music. Young arrived and, with a shirt tied over his face and holding a shotgun, approached the victim. The victim did not know Young’s name, but he recognized him as a cousin of Floyd. The victim had seen Young a few times before, including about three weeks earlier, when Young had been bragging about his new shotgun. Even though Young had a shirt tied over his face, the victim was able to identify him because of his distinctive eyes, skin tone, and voice. Young beat the victim with his fists and the butt of the shotgun and choked him. During the attack, Young did not interfere when Cummings left the room. Young and Floyd went through the victim’s pockets and took his debit card, cell phone, and cash and then took his clothes and shoes as well.

Young and Floyd then told the victim to leave that apartment. The victim ran to the pizza restaurant and called 911 and reported that he had been robbed by Cummings, his cousin “Quayshaun,” and another cousin whose name he did not know but whom he would be able to identify. A few days later, he identified Young as the perpetrator from among those pictured in a photo array prepared by an investigator. When Floyd was arrested, he was wearing the shoes and some of the clothes that had been stolen from the victim.

At trial, the victim identified Young as the gunman. During that testimony, the prosecutor held a piece of paper in front of his face so that it concealed the same area of his lower face as the shirt had concealed for the gunman. The prosecutor then asked if the victim could identify him by his voice and his eyes, even though the prosecutor and the victim had met only once. Defense counsel did not object to this demonstration.

An investigator testified, without objection, that he obtained records that documented multiple phone calls between Cummings’ and Young’s cell phones within minutes before the robbery and additional phone calls shortly after the robbery. The records also showed that Young’s, Floyd’s, and Cummings’ cell phone were all “pinging off” a cell tower located near the scene of the robbery at the time it occurred.

Young’s counsel’s defense strategy at trial was to attack the credibility of the victim’s identification and to argue that it was a case of mistaken identity.

On appeal, Young contends that his counsel failed to meaningfully test the State’s case in several respects and therefore that he received ineffective assistance.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984) [.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”) (citation and punctuation omitted).

As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. Matters of trial tactics, even if they appear in hindsight to be questionable, are grounds to find counsel ineffective only if the tactical decision is so patently unreasonable that no competent attorney would have chosen it.

(Citations and punctuation omitted.) Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009). Failure to satisfy either prong of the Strickland v. Washington standard is fatal to an ineffective assistance claim. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). As the appellate court, “[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. at 76.

1. Young contends that his counsel’s failure to object to the prosecutor’s demonstration of partially covering his face allowed the State to improperly bolster the victim’s identification and therefore prejudiced his defense. The trial court determined that it would have allowed the demonstration even over objection. And allowing such demonstrations is generally within the trial court’s discretion. We discern no improper bolstering of the victim’s credibility and no ineffective assistance of counsel. Burke v. State, 316 Ga. App. 386, 389 (1) (a) (729 SE2d 531) (2012) (“Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.”) (punctuation and footnote omitted).

2. Young contends that his counsel’s failure to object to the prosecutor’s leading questions to most of the State’s witnesses undermined the defense strategy and therefore was deficient and prejudiced his defense. At the hearing on Young’s motion for a new trial, his trial counsel testified that he generally does not object to leading questions because jurors tend to view them as “petty,” and because objecting does not usually stop prosecutors from continuing to ask leading questions, although he will object when he believes the questions are harmful to his trial strategy. Having reviewed the specified questions in context, we conclude that the trial court’s finding that the failure to object was a reasonable trial strategy under the circumstances and did not prejudice Young’s defense was not clearly erroneous. Sledge v. State, 312 Ga. App. 97, 104 (2) (b) (717 SE2d 682) (2011). This argument lacks merit.

3. Young contends that cell phone location evidence was inadmissible because the State offered the evidence through a nonexpert witness who lacked an appropriate level of knowledge. In addition, he contends that the cell phone records were inadmissible for the purpose offered because they showed that they do not accurately reflect a cell phone’s location. As a result, Young contends, his trial counsel’s failure to object to the introduction of the cell phone location evidence was deficient and prejudiced his defense.

(a) As Young contends, the trial transcript fails to show that the investigator was qualified as an expert in the meaning of cell phone records by knowledge, skill, experience, training, or education. See OCGA § 24-7-702 (2013); Pullin v. State, 272 Ga. 747, 749 (534 SE2d 69) (2000) (The analysis of billing data that indicates the location of the tower or towers that serviced a particular cellular call to determine the geographic location of a person during a call at issue has reached a scientific stage of verifiable certainty such that testimony on the issue is admissible, given the proper foundation.). As the trial court found, however, a law enforcement officer may testify as an expert regarding cell phone location if he is qualified to do so. In ruling on Young’s motion for a new trial, the trial court was not required to presume that the investigator in fact lacked sufficient knowledge, skill, experience, training, or education to offer expert testimony on the subject. Because Young failed to proffer evidence showing that an objection for lack of foundation would have been successful, the trial court’s finding that Young was not prejudiced by trial counsel’s failure was not clearly erroneous. White v. State, 293 Ga. 825, 827-828 (2) (c) (750 SE2d 165) (2013); White v. State, 293 Ga. App. 241, 242-243 (1) (666 SE2d 618) (2008); Cannon v. State, 167 Ga. App. 225, 226 (1) (305 SE2d 910) (1983) (physical precedent only). Moreover, given the victim’s testimony, which provided direct evidence that Young was at the scene of the robbery, and was the gunman, we conclude that Young failed to show a reasonable likelihood that, but for counsel’s failure to object, the outcome of the trial would have been different.

(b) Similarly, with regard to whether the cell phone records accurately reflected cell phone location in this case, we conclude, in light of the direct evidence that Young was at the scene of the robbery, that Young failed to show a reasonable likelihood that, but for counsel’s failure to object, the outcome of the trial would have been different.

4. Young contends that certain prosecutorial argument was improper and inflammatory and that his counsel’s failure to object to the argument constituted an abdication of his role as an advocate.

First, Young contends that his counsel should have objected when the prosecutor prefaced a question to the investigator for an explanation for “what that means, when we’re talking about hitting or pinging off cell towers,” saying, “[y]ou [the investigator] and me [the prosecutor] and [defense counsel] have been in court before and kinda know what that means.” Young contends that defense counsel “should have objected to being lumped in with the State’s advocates” in the group that supposedly understands this technology. Because his counsel failed to object, he contends, “the jury was left to believe that [defense] counsel’s allegiance was behind the State’s evidence.”

Next, Young contends that counsel should have objected during closing argument, when the prosecutor argued that the defense’s theory of misidentification would require the jury to believe that persons other than Cummings and Young had their cell phones on the night of the robbery and stated, “That’s one theory. I find it comical, whatever, but you have to buy it to buy into their defense. And it’s not [defense counsel’s] fault; his client put him in this predicament, right?”

Pretermitting whether these remarks by the prosecutor were improper, we conclude, as the trial court did, that counsel’s failure to object did not constitute an abdication of his role as an advocate and that Young failed to show a reasonable likelihood that, but for counsel’s failure to object, the outcome of the trial would have been different.

5. Young contends that, even if none of his counsel’s errors, when considered individually, prejudiced his defense so as to merit reversal, the collective effect of the errors did so prejudice his defense, warranting reversal by this Court, citing Darst v. State, 323 Ga. App. 614 (746 SE2d 865) (2013). We conclude that, even considering the collective effect of Young’s claimed instances of ineffective representation, he failed to carry his burden of showing a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Accordingly, the trial court did not err in denying Young’s claims of ineffective assistance of counsel. Owens v. State, 324 Ga. App. 198, 206 (2) (749 SE2d 783) (2013); Tyner v. State, 313 Ga. App. 557, 566-567 (6) (e) (722 SE2d 177) (2012).

When a defendant establishes that trial counsel’s performance was deficient in more than one respect, the court’s determination of whether he or she was prejudiced thereby requires consideration of the collective effect of the deficiencies. It is the prejudice arising from counsel’s errors that is constitutionally relevant, so each individual error by counsel should not be considered in a vacuum.

Decided August 20, 2014.

Amy L. Ihrig, for appellant.

MegE. Heap, District Attorney, Jerome M. Rothschild, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

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

       Courtroom experiments sometimes make a practical demonstration of the question in issue, and are often the best evidence in elucidating the truth. Generally, whether courtroom demonstrations will be permitted rests within the sound discretion of the trial court. The weight of such evidence is for the jury, and varies according to the circumstances of similarity which they may find to exist between the experiments and the actual occurrence under investigation.
      (Citations omitted.) Powell v. State, 226 Ga. App. 861, 862 (1) (487 SE2d 424) (1997). See also Bryant v. State, 282 Ga. 631, 638-639 (7) (651 SE2d 718) (2007); Speed v. State, 270 Ga. 688, 692 (15) (512 SE2d 896) (1999); Christian Constr. Co. v. Wood, 104 Ga. App. 751, 758 (3) (123 SE2d 151) (1961); Jack Goger, Daniel’s Georgia Handbook on Criminal Evidence, § 7:35 (2013 ed., database updated August 2013).

       We note that Young’s trial took place in March 2013, after the effective date of Georgia’s new Evidence Code, which applies to any motion, hearing or trial commenced on or after January 1, 2013. Ga. L. 2011, p. 99, §§ 2, 101.

       See Alexandra Wells, “Ping! The Admissibility of Cellular Records to Track Criminal Defendants,” 33 St. Louis U. Pub. L. Rev. 487, 506-516 (V) (2014) (noting that courts have expressed conflicting answers to the question whether cellular phone records can be admitted only through expert testimony and, if so, whether a police officer was qualified as an expert).

       Cf. Pullin v. State, 272 Ga. at 749; United States v. Schaffer, 439 Fed. Appx. 344, 347 (5th Cir. 2011) (concluding that the field of “historical cell site analysis” to determine the past locations of a cell phone is “neither untested nor unestablished” and has been widely accepted in federal courts). (Citations and punctuation omitted.) Darst v. State, 323 Ga. App. at 618 (2). See also State v. Worsley, 293 Ga. 315, 324 (3) (745 SE2d 617) (2013) (“To the extent that the performance of counsel was deficient in more than one respect, it is the collective effect of the deficiencies against which prejudice is measured.”) (citation omitted); Perkins v. Hall, 288 Ga. 810, 812 (II) (708 SE2d 335) (2011) (“In weighing prejudice, we consider the collective prejudice from all of trial counsel’s deficiencies.”) (citation omitted); Schofield v. Holsey, 281 Ga. 809, 811-812 (II), n. 1 (642 SE2d 56) (2007) (Because it is the prejudice arising from counsel’s errors that is constitutionally relevant, each individual error by counsel should not be considered in a vacuum. Rather, the cumulative effect of counsel’s errors should be considered. “Although the combined effects of trial counsel’s errors should be considered together as one issue, ¡however,] it remains the case that this State does not recognize the cumulative error rule.”) (citation and punctuation omitted).

       In that case, we held:


author: Phipps, Chief Judge.

text:
    A12A1125.
    LLOYD’S SYNDICATE NO. 5820 v. AGCO CORPORATION.
    (763 SE2d 251)
   Phipps, Chief Judge.

In Lloyd’s Syndicate No. 5820 v. AGCO Corp.,* the Supreme Court reversed our rulings in Divisions 1 and 2 of Lloyd’s Syndicate No. 5820 v. AGCO Corp. (“Lloyd’s Syndicate I”). In Lloyd’s Syndicate I, we pertinently affirmed the grant of AGCO’s motion for partial summary judgment and the denial of Cassidy Davis’s motion for summary judgment on the issue of whether an extended protection plan provided coverage for equipment failures caused by certain types of defects. We also affirmed the denial of Cassidy Davis’s motion for summary judgment on AGCO’s claims for bad faith related to an indemnity provision. The Supreme Court held that we erred in these rulings, concluding that Cassidy Davis was entitled to summary judgment on the extended protection plan issue and the bad faith claim.

Decided August 21, 2014.

McMickle, Kurey & Branch, Scott W. McMickle, for appellant.

Freeman, Mathis & Gary, T. Bart Gary, for appellee.

Accordingly, Divisions 1 and 2 of Lloyd’s Syndicate I are vacated, and the judgment of the Supreme Court is adopted in their stead. Thus, regarding the issue of whether coverage is provided for failures resulting from design or engineering defects, the judgment of the trial court is reversed. Regarding AGCO’s claims for bad faith, the judgment of the trial court is reversed.

The case is remanded to the trial court for proceedings consistent with the opinion of the Supreme Court.

Judgment reversed and case remanded.

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

       294 Ga. 805 (756 SE2d 520) (2014).

       319 Ga. App. 260 (734 SE2d 899) (2012). In Lloyd’s Syndicate I, we disposed of three cases, which we had consolidated for the purposes of appeal: Case Nos. A12A1125, A12A1126, and A12A1281. The Supreme Court granted certiorari in and considered our judgment only in Case No. A12A1125. Divisions 1 and 2 of Lloyd’s Syndicate I constituted the entire judgment of Case No. A12A1125. Our rulings in the other two cases became final upon the return of the remittiturs to the trial court.

       Id. at 262-263 (1).

       Id. at 263-264 (2).

        Lloyd’s Syndicate No. 5820, 294 Ga. at 806-813 (1), (2).


author: MCFADDEN, Judge.

text:
    A14A1011.
    SMITH v. THE STATE.
    (763 SE2d 251)
   MCFADDEN, Judge.

After a jury trial, Keith Antonio Smith was convicted of aggravated assault (OCGA § 16-5-21), aggravated battery (OCGA § 16-5-24), and cruelty to children in the third degree (OCGA § 16-5-70 (d)). He challenges the sufficiency of the evidence supporting the aggravated battery conviction, but the evidence authorized the jury to find he had committed that offense. He also challenges the effectiveness of his trial counsel in connection with his decision not to testify at trial, but he has not met his burden of showing that he received ineffective assistance. Accordingly, we affirm.

1. Sufficiency of the evidence.

Smith argues that the evidence was insufficient to support his conviction for aggravated battery, an offense committed when a person “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.” OCGA § 16-5-24 (a). When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original).

So viewed, the evidence showed that on June 13,2011, Smith was living in an apartment with, among others, his girlfriend, their four-year-old daughter, and his girlfriend’s mother, Carla Hunter. That night, Smith and Hunter began arguing about whether Hunter should iron clothes in a bedroom where the child was sleeping. At some point during the argument, Smith took the child into another room. As the argument continued, Smith retreated to his bedroom and retrieved and loaded a gun. His girlfriend screamed for Hunter to leave the house and tried to restrain Smith. Smith broke away, walked quickly to the room in which Hunter was ironing, and fired the gun several times into the room, striking Hunter in the arm and shoulder. Hunter’s injuries made it difficult for her to write and for several months she required assistance with personal care tasks such as cooking and bathing. She underwent physical therapy to regain feeling in her arm.

The state charged Smith with committing aggravated battery by rendering her arm useless. Smith argues that the evidence showed only that Hunter’s use of her arm was temporarily impaired, not that the arm was rendered useless. But “even the temporary reduced use of a bodily member may be sufficient to render it useless” under the aggravated battery statute. Biggins v. State, 299 Ga. App. 554, 555 (1) (683 SE2d 96) (2009) (citations and punctuation omitted). The evidence that, for several months after the shooting, Hunter struggled to write and to care for herself, had to rely on another person for help in tasks such as cooking and bathing, and had to undergo physical therapy, authorized Smith’s conviction for aggravated battery. See Walls v. State, 283 Ga. App. 560, 561 (1) (642 SE2d 195) (2007) (finding evidence that victim had suffered loss of use of elbow, supporting defendant’s conviction for aggravated battery, where victim’s elbow had been broken, victim had undergone physical therapy to regain strength in her arm, and victim had spent three months in safe house because she could not care for herself).

2. Ineffective assistance of counsel.

Smith did not testify at trial, and he argues that his trial counsel was ineffective in advising him on this decision. To prevail, he must show

that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. If an appellant fails to meet his or her burden of proving either prong of [this] test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010) (citations and punctuation omitted).

The record shows that, after the state’s case-in-chief, the trial court engaged in a colloquy with Smith about his decision not to testify and found that Smith had “discussed his Constitutional rights with his lawyer and that it is a free and voluntary decision on his part to not take the stand and offer testimony.” Smith does not challenge the effectiveness of his trial counsel up to that point. Instead, he argues that his trial counsel should have revisited the issue with him at a later point — when the trial court decided not to give Smith’s requested jury charge on the affirmative defense of accident. Although trial counsel had elicited some evidence during the state’s case-in-chief that the gun had discharged accidentally, the trial court held that there was not enough evidence to support the accident charge, and Smith has not challenged this ruling on appeal.

Smith argues that accident was his sole defense and that his testimony would have supported the giving of the charge. Accordingly, he argues that his trial counsel was deficient in two respects: by failing to revisit the issue of testifying with him after the jury charge ruling and by failing to advise him to testify. As detailed below, Smith has not shown that he was prejudiced by trial counsel’s failure to revisit the issue, and he has not shown that trial counsel was deficient in concluding, despite the jury charge ruling, that it would not be in Smith’s best interest to testify.

(a) Failure to revisit the issue of testifying.

“Defense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify, the strategic implications of each choice, and that it is ultimately for the defendant himself to decide.” Thornton v. State, 292 Ga. 796, 798 (2) (a) (741 SE2d 641) (2013) (citation omitted). Through the colloquy with Smith, the trial court determined that he had made an informed and voluntary decision not to testify. See generally Jones v. State, 290 Ga. 576, 579 (3) (722 SE2d 853) (2012) (rejecting claim of ineffective assistance based on allegedly deficient advice about defendant’s testimony, where trial court had informed defendant of his right to testify and his right to decide whether he would testify). Assuming without deciding that trial counsel should have revisited this issue with Smith to discuss the implications of the trial court’s subsequent jury charge ruling, Smith has not shown that this alleged deficiency prejudiced him. Nothing in the record suggests that trial counsel would have advised Smith differently had she revisited the issue. To the contrary, trial counsel testified on direct examination at the hearing on the motion for new trial that, even after the jury charge ruling, she did not think it was in Smith’s best interest to testify; and Smith’s new trial counsel did not follow up. And when asked at the hearing on the motion for new trial whether he would have made a different decision about testifying had he known the implications of the trial court’s ruling on the jury charge, Smith indicated that he would have continued to follow his attorney’s advice:

Q. Had you known that the jury, that because you didn’t testify, the jury wouldn’t even be able to consider accident, had you known that, what would •— what would have been your decision about testifying or not testifying?
A. No, I was unaware of how it all works because my lawyer told me not to testify because there’s no need for it.
Q. Okay. You were following her advice?
A. Right. And me, not being a lawyer, never studied any law book or anything, I listened.

Accordingly, Smith has not shown that he would have chosen to testify, contrary to his trial counsel’s advice, if trial counsel had revisited the issue. Consequently, he has not met his burden of showing a reasonable likelihood that, but for trial counsel’s failure to revisit the issue, the outcome of the trial would have been different. See Bridges, 286 Ga. at 537 (1).

(b) Determination that testifying was not in Smith’s best interest.

Smith argues that trial counsel was deficient in believing that it would not be in Smith’s best interest to testify. He argues that trial counsel’s opinion rested on a misapprehension of law regarding the potential negative impact of Smith’s testimony on his case. We disagree.

At the hearing on the motion for new trial, trial counsel testified that, despite the trial court’s jury charge ruling, she did not believe Smith should testify based on information he had previously given trial counsel, which was that his “initial firing of the weapon was not an accident.” Smith had told trial counsel that he first fired two or three “warning” shots into the room occupied by Hunter but did not intend to strike her, that his girlfriend began struggling with him for the gun, and that the gun then accidentally discharged several more shots. Although at the hearing Smith stated that he would have testified to a different version of events, in which all of the shots fired were accidental, he conceded that he did not share that version of events with his trial counsel. From the version of events known by trial counsel, she believed that Smith’s actions demonstrated aggravated assault, one of the offenses with which he was charged.

Smith argues that trial counsel was wrong in believing that his act of firing “warning” shots constituted aggravated assault under the method of aggravated assault upon which the trial court charged the jury (aggravated assault by attempting to violently injure another under OCGA § 16-5-20 (a) (1)). Nevertheless, it was reasonable for trial counsel to believe that Smith’s testimony would put him at risk of conviction for aggravated assault. Smith told trial counsel that he fired a gun several times into the room occupied by Hunter. The jury could have inferred from Smith’s actions that he intended to commit a violent injury to Hunter, despite his protest to the contrary. See Jordan v. State, 322 Ga. App. 252, 254 (2) (744 SE2d 447) (2013) (jury could infer defendant intended to shoot victim from evidence that defendant fired shots in victim’s direction). “A jury may infer criminal intent from the circumstances, [cit.] and there is a rebuttable presumption that ‘(a) person of sound mind and discretion ... intend(s) the natural and probable consequences of his acts.’ ” Id. (quoting OCGA § 16-2-5).

Consequently, when the trial court declined to give Smith’s requested jury charge on accident, trial counsel was faced with the dilemma of whether to present potentially damaging evidence in order to get the accident charge. Instead, trial counsel chose to highlight in closing argument the evidence that suggested the gun had discharged accidentally. We cannot say that this decision fell outside the wide range of reasonable professional lawyering such that no reasonable lawyer at the trial could have acted, in the circumstances, as Smith’s trial counsel acted. See Bridges, 286 Ga. at 537 (1). Accordingly, Smith has not shown that his trial counsel was deficient in failing to change her advice that he not testify.

Decided August 25, 2014.

Kenneth D. Kondritzer, for appellant.

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

Judgment affirmed.

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


author: Branch, Judge.

text:
    A12A2506.
    COOK et al v. GLOVER.
    (763 SE2d 272)
    Decided August 26, 2014.

      J. Kevin Tharpe, for appellant.
   Branch, Judge.

In Cook v. Bottesch, 320 Ga. App. 796 (740 SE2d 752) (2013), this Court addressed whether the Georgia Department of Community Health (DCH) correctly imposed an asset transfer penalty on four applicants for Medicaid benefits. In three of the cases, this Court reversed the ruling of the relevant superior courts that had reversed the penalty imposed by DCH. Id. In Case No. A12A2506, which is now again before us, we reversed the decision of the superior court, which had upheld the penalty imposed by DCH on applicant Jerry L. Glover. Id. On writ of certiorari, the Supreme Court of Georgia reversed that portion of our decision in Cook v. Bottesch, 320 Ga. App. 796, applicable to Case No. A12A2506. See Cook v. Glover, 295 Ga. 495 (761 SE2d 267) (2014). We therefore vacate that portion of our earlier opinion applicable to Case No. A12A2506, adopt the Supreme Court’s opinion as our own with regard to that case, and affirm the judgment of the superior court.

Judgment affirmed.

Miller and Ray, JJ., concur.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Michelle Townes, Jason S. Naunas, Assistant Attorneys General, for appellees.

        Cook v. Bottesch, Case No. A12A2268; Cook v. Shorey, Case No. A12A2269; and Cook v. Robertson, Case No. A13A0006. In April 2013, this Court issued remittiturs to the trial court in each of those cases.


author: BARNES, Presiding Judge.

text:
    A14A0828.
    BOUTIER v. THE STATE.
    (763 SE2d 255)
   BARNES, Presiding Judge.

A jury convicted Joel Boutier of aggravated assault and aggravated battery based on evidence that he attacked a fellow inmate at jail. On appeal from the denial of his motion for a new trial, Boutier contends that the trial court erred in declining to charge the jury on the defense of justification and that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict.” Flemister v. State, 317 Ga. App. 749 (732 SE2d 810) (2012). So viewed, the evidence showed that Boutier and the victim were inmates at the Fayette County jail, where they were housed in a dormitory-style unit and slept a few bunks away from one another. On May 14, 2009, the victim awoke early in the morning, before detention officers had come around the unit to wake up the inmates for the day. The victim routinely got up before the other inmates so that he could wash up in the bathroom before a line formed.

After retrieving his toiletries from the drawer under his bunk, the victim began walking to the bathroom. As the victim passed by Boutier’s bunk, Boutier jumped up and began shouting at him for making too much noise. The victim responded that he was not making much noise and that the officers would be waking up the inmates soon anyway. Following his exchange with Boutier, the victim continued to the bathroom and washed up for the day.

After washing up in the bathroom, the victim returned to his bunk bed. Boutier suddenly came over to the victim’s bunk and lunged at him with his fists, striking the victim in the jaw. Boutier got behind the victim, grabbed him by the neck, and began scratching and clawing at his face. The victim struggled and tried to break free from Boutier, and both of them fell to the floor. Boutier then stuck his finger in the victim’s mouth and ripped the skin around the victim’s lip, causing a deep gash. The wound was approximately one-and-a-half inches long and bled profusely. The victim had to receive over ten stitches to repair the damage, and the wound left a permanent scar.

A short while after the attack on the victim, a sheriff’s deputy interviewed Boutier in a medical exam room, where a nurse was treating the victim for his injuries and Boutier was waiting to be treated for a “mild abrasion or a cut above one eye in the eyebrow area.” Boutier agreed to the interview after being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). During the interview, Boutier told the deputy that he had been having repeated problems with the victim getting up early in the morning, making some noise, and waking him up. According to Boutier, he had asked the jail staff to move him, and in response, the staff had provided him with a bunk further away from the victim but still in the same housing unit. Boutier told the deputy that even after he had been moved to a different bunk, the victim was still waking him up in the mornings, and so he decided he “would take care of the matter” himself because “nothing else [was] going to be done by the staff.” Boutier admitted to the deputy that he had “attacked” the victim and had torn his lip area with his finger.

Boutier thereafter was indicted on charges of aggravated assault and aggravated battery. At the ensuing jury trial, the victim and the sheriff’s deputy who interviewed Boutier testified to the events as summarized above. Another detention officer testified regarding the injuries he had observed on the victim after the attack, and the State also introduced photographs of the victim’s wounds. Boutier elected not to testify and did not call any defense witnesses.

Following the close of the evidence, Boutier requested a jury charge on the defense of justification, which the trial court denied. Subsequently, after the charge of the court, the jury found Boutier guilty of both offenses. Boutier then filed a motion for a new trial and, upon being appointed new counsel, amended his motion to claim that his trial counsel had rendered ineffective assistance. After conducting a hearing in which Boutier’s trial counsel testified, the trial court denied the motion for a new trial. This appeal followed.

1. Boutier contends that the trial court erred in declining to charge the jury on the defense of justification. We disagree.

Under Georgia law, a person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself against such other’s imminent use of unlawful force.

(Citation and punctuation omitted.) Jackson v. State, 316 Ga. App. 588, 594 (5) (a) (730 SE2d 69) (2012). See OCGA § 16-3-21 (a). However, “a person is not justified in using force in self-defense if he is the initial aggressor or engages in mutual combat, unless he withdraws from the encounter and notifies the other participant that he is doing so.” (Citation and punctuation omitted.) Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011). “It is not error to refuse a justification charge where there is no evidence to support it.” (Citation and punctuation omitted.) Jackson, 316 Ga. App. at 594 (5) (a) .

Boutier declined to testify at trial or present any defense witnesses to support a justification defense, and his cross-examination of the State’s witnesses did not reveal any evidence that would support a defense of justification. Instead, all of the evidence presented at trial pointed to Boutier as the initial aggressor who violently attacked the victim because he believed the victim was making too much noise. And, contrary to Boutier’s assertion in his brief, the detention officer’s testimony that Boutier had a “mild abrasion or a cut” over one of his eyes, without more, clearly was insufficient to support a justification charge. Accordingly, the trial court committed no error in declining to charge the jury on the defense of justification, given that there was no evidence to support it. See Jackson, 316 Ga. App. at 594 (5) (a) (charge on justification defense not warranted where uncontroverted evidence showed that defendant was initial aggressor and did not communicate a withdrawal); Park v. State, 230 Ga. App. 274, 278 (4) (495 SE2d 886) (1998) (same).

2. Boutier also contends that his trial counsel was ineffective in several respects. To prevail on his claim of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), Boutier “must show both that his counsel performed in a professionally deficient manner and that there is a reasonable probability that, but for such deficiency, the result of his trial would have been different.” Smith v. State, 292 Ga. 620, 621 (2) (740 SE2d 158) (2013). If Boutier fails to prove either prong of the Strickland test, we need not address the other prong. Russell v. State, 322 Ga. App. 553, 556 (3) (b) (745 SE2d 774) (2013). Guided by these principles, we turn to Boutier’s specific allegations of ineffective assistance.

(a) As previously noted, a sheriff’s deputy interviewed Boutier in a medical exam room shortly after the attack. The deputy audio-recorded the interview. At trial, the deputy summarized what Boutier said to him during the interview, but neither the State nor Boutier’s counsel sought to introduce the audio recording. On appeal, Boutier contends that his trial counsel was ineffective for failing to introduce the audio recording of the interview to impeach the deputy’s testimony about what was said during the interview and to bring out all of the material details of the interview before the jury. See generally Westbrook v. State, 291 Ga. 60, 62 (2) (727 SE2d 473) (2012) (discussing introduction of evidence under “rule of completeness,” which provides that “if part of a conversation is introduced, all that is said in the same conversation which is relevant to the issue should be admitted” (citation and punctuation omitted)); Cade v. State, 289 Ga. 805, 810 (6) (716 SE2d 196) (2011) (discussing admission of audio recordings for impeachment purposes). According to Boutier, he was prejudiced by his trial counsel’s failure to introduce the audio recording because he made statements during the recorded interview that were not mentioned or were contradicted by the deputy during his trial testimony and that would have supported a jury charge on the defense of justification.

Boutier has failed to prove either deficient performance or prejudice resulting from his counsel’s decision to forego introducing the audio recording of the interview. In the audio recording of the interview introduced at the hearing on his motion for new trial, Boutier can be heard telling the sheriff’s deputy that the victim had awakened him “every night for a long time” and had previously taunted him about waking up from the noise. Boutier explains to the deputy that on the morning in question, the victim had approached him, laughed at him, and taunted him over the fact that he had been awakened again by the noise by calling him “crazy’1’ and telling him “it [was] time to get up.” Boutier goes on to admit that the victim “just kept on egging [him] on, and that is when [he] attacked [the victim].” Boutier further tells the deputy that he “grabbed [the victim] and fish hooked him, like his cheek” to make the cut. When the deputy asks Boutier if the victim had hit him “at any point during the altercation,” Boutier responds that the victim “tried to” but was unsuccessful.

At the new trial hearing, Boutier’s trial counsel testified that he had reviewed the audio recording before trial and had chosen not to introduce it because of the damaging admission made by Boutier during the interview. Decisions regarding what evidence to introduce are matters of trial strategy, see Serrate v. State, 268 Ga. App. 276, 278 (2) (c) (601 SE2d 766) (2004), and “[t]rial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012).

We cannot say that trial counsel’s strategic decision to forego introducing the audio recording of the interview was patently unreasonable. Boutier admits during the recorded interview that he “attacked” the victim and “fish hooked” his mouth, causing the severe cut, merely because the victim taunted him about awakening from the noise. A reasonable defense attorney could have concluded that playing the actual audio recording, after the deputy’s testimony summarizing the interview, would only have emphasized Boutier’s damaging admission to the jury. Accordingly, Boutier cannot show that his trial counsel was deficient. See Dixon v. State, 275 Ga. 232, 234 (5) (564 SE2d 198) (2002) (decision to forego introducing recorded statements for impeachment purposes was reasonable trial strategy).

Nor can Boutier show that the failure to introduce the audio recording caused him any prejudice. While Boutier claims that his statements to the sheriff’s deputy during the recorded interview would have supported a charge on the defense of justification and could have led the jury to acquit him based on that defense, we are unpersuaded. Boutier does tell the deputy in the interview that the victim had teased him about waking up from the noise that morning, but verbal insults and taunts are insufficient, without more, to warrant a justification charge. See Glenn v. State, 253 Ga. App. 333, 334 (559 SE2d 86) (2002) (fact that victim “offered some words” or “said some cuss words” to the defendants before the assault was insufficient to support justification charge, where there was no evidence that the victim attempted to harm or made any “verbal threats to do physical harm” to the defendants); Carter v. State, 150 Ga. App. 119, 120 (4) (257 SE2d 11) (1979) (fact that victim and defendant “got into an argument” and “insults were exchanged” did not warrant charge on defense of justification). Moreover, while Boutier states in the recorded interview that at some point during the altercation the victim unsuccessfully tried to hit him, he also makes clear that he was the one who “attacked” the victim. Thus, the recorded interview reflects that Boutier was the initial aggressor, and there is no evidence that he made any effort to communicate a withdrawal from the encounter at any point; as such, he would not have been entitled to a charge on the defense of justification based on the recording. See Park, 230 Ga. App. at 278 (4) (justification charge not warranted where uncontradicted evidence showed that defendant “was the aggressor and . . . made no effort to communicate a withdrawal from the encounter”). Accordingly, Boutier cannot show that there is a reasonable probability that, if his trial counsel had introduced the audio recording, the outcome of the trial would have been different. It follows that the trial court committed no error in denying Boutier’s ineffective assistance claim on the asserted ground.

(b) Boutier also claims that his trial counsel was ineffective for failing to introduce photographs of him that were taken on the day of the altercation that showed injuries to the left side of his face. Boutier points out that his trial counsel testified at the new trial hearing that he had no strategic reason for failing to introduce the photographs. Boutier further suggests that the photographs would have buttressed his argument before the trial court that he was entitled to a charge on the defense of justification and would have given the jury a more accurate understanding of the altercation.

Boutier cannot show that his trial counsel was deficient for failing to introduce the photographs. In his recorded interview with the sheriff’s deputy, Boutier states that the victim never hit him and indicates that his facial injuries were caused by another detention officer who “slammed [his] face against the wall” while he was in the intake cell after his altercation with the victim. Because the photographs were of injuries sustained by Boutier only after his altercation with the victim, the photographs were irrelevant to the material issues at trial and thus would have been inadmissible. Consequently, Boutier’s trial counsel was not deficient for failing to attempt to introduce the photographs. See Barrett v. State, 292 Ga. 160, 173 (3) (c) (1) (733 SE2d 304) (2012) (attorney is not deficient for failing to discover and present irrelevant and inadmissible evidence); Sevostiyanova v. State, 313 Ga. App. 729, 732 (2) (722 SE2d 333) (2012) (failure to attempt to introduce photographs of rental car taken after the incident in question did not constitute deficient performance because the photographs were “irrelevant to the issues at trial”).

In any event, Boutier cannot show that he suffered any prejudice as a result of the failure to introduce the photographs. During his cross-examination of the sheriff’s deputy at trial, Boutier’s trial counsel elicited testimony from the deputy that Boutier had “a mild abrasion or cut above one eye in the eyebrow area” and a “small amount” of blood. (Notably, trial counsel did not ask the deputy how Boutier received those injuries, so the jury was unaware that the injuries occurred after his attack on the victim.) Because the jury was made aware that Boutier had injuries to his face, we cannot say that there is a reasonable probability that the outcome of the trial would have been different if the photographs of his facial injuries had been introduced, and thus Boutier cannot succeed on his ineffective assistance claim. See Gibson v. State, 277 Ga. 486, 488 (2) (591 SE2d 800) (2004) (defendant could not show that the failure to introduce records was prejudicial to his defense, where records would have been cumulative of testimony elicited at trial).

(c) Lastly, Boutier contends that his trial counsel was ineffective for failing to move for a mistrial after the victim gave a non-responsive answer to a question on cross-examination. Specifically, after the victim testified that he believed the attack “was premeditated and planned,” Boutier’s trial counsel attempted to question the victim about his belief, but the victim interrupted him and testified:

I... sincerely — at this point, I — I — in my heart, I believe he premeditatedly waited for me to get up that morning. He already had planned what he was going to do and he — he followed it through. He did it. He knew that he was — he had gone to court. He wasn’t happy with his situation with his family and what happened with his case.

(Emphasis supplied.) Boutier’s trial counsel objected to the victim’s testimony but did not move for a mistrial. The trial court then cautioned the victim and instructed him to “listen carefully to the question” and to “answer the question.” On appeal, Boutier contends that his trial counsel was deficient for failing to move for a mistrial and that he suffered prejudice because the victim’s reference to Boutier’s “case” and “his situation with his family’ suggested to the jury that Boutier was a violent person and had committed a crime against his family.

To succeed on this ineffective assistance claim, Boutier must make a strong showing that if his trial counsel had moved for a mistrial, the trial court would have abused its discretion if it denied the motion. See Paige v. State, 277 Ga. App. 687, 691 (4) (a) (627 SE2d 370) (2006). Cf. Boykins-White v. State, 305 Ga. App. 827, 831 (4) (701 SE2d 221) (2010) (to prove that trial counsel was ineffective for failing to file a motion to suppress, the defendant must make a “strong showing” that the motion would have been granted). “[A] mistrial is warranted only if essential to preserve a defendant’s right to a fair trial, and the trial court is vested with broad discretion in making this determination.” Mister v. State, 286 Ga. 303, 306 (3) (687 SE2d 471) (2009).

Boutier cannot succeed on his claim of ineffectiveness. Nothing in the victim’s testimony indicated to the jury that Boutier was in jail for a violent crime, much less that the crime had been against his family. Moreover, even if the victim’s testimony could be construed as referring to Boutier’s character, “a nonresponsive answer that impacts negatively on a defendant’s character does not improperly place the defendant’s character in issue” so as to mandate the grant of a mistrial. (Citations and punctuation omitted.) Carr v. State, 282 Ga. 698, 701-702 (3) (653 SE2d 472) (2007). In any event, the jury, of course, already knew that Boutier had a criminal history, given that the attack at issue occurred in jail among two inmates. Consequently, Boutier has failed to make a strong showing that the trial court would have abused its discretion by denying a requested mistrial, and thus he cannot prevail on this ineffective assistance claim. See Paige, 277 Ga. App. at 691 (4) (a).

Decided August 26, 2014 —

J. Scott Key, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Jeremy M. Hayes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Because Boutier was tried in 2010, the new Georgia Evidence Code does not apply to any of the evidentiary issues discussed in this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       A transcript of the audio-recorded interview also was introduced at the new trial hearing for demonstrative purposes only. There were no material disagreements between the State and Boutier over the accuracy of the interview transcript.