author: MCMILLIAN, Judge.

text:
    A12A2243.
    NOSRATIFARD v. THE STATE.
    (740 SE2d 290)
   MCMILLIAN, Judge.

Shahrokh Nosratifard appeals from the trial court’s denial of his motion for a new trial following his conviction on five counts of aggravated stalking based on five text messages sent to Karen Maxie. On appeal, Nosratifard asserts that the evidence was insufficient to support his convictions and further argues that the trial court erred in failing to merge the counts involving texts that occurred as part of a continuous course of conduct or conversation. Because we find that the evidence was sufficient to support Nosratifard’s convictions and that his convictions were not subject to merger, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). This Court neither weighs the evidence nor determines the credibility of witnesses, but rather considers only whether, after viewing the evidence in the light most favorable to the jury’s verdict, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation, punctuation and footnote omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence at trial showed that Karen Maxie met Nosratifard online in 2004, and they began a relationship. By 2006, Nosratifard “was practically living with [her].” During this time Maxie helped finance Nosratifard’s cabinet business. But by 2007, the relationship had deteriorated, and by May 2008, Maxie decided to end the relationship due to Nosratifard’s “mental abuse.” She said this abuse included possessiveness, watching her home, searching her home without consent, running a background check on her and threatening to distribute intimate pictures of her to her family, co-workers and the community in which she lived. When Maxie told Nosratifard that the relationship was over, he “exploded” and said that he would never let her go.

Although Nosratifard never stayed at Maxie’s house again, he called her continuously and “pled and begged and screamed and cussed” for her to give him a second chance. Maxie said she kept talking to him and trying to persuade him that it would be better for them to be friends because she wanted to “do whatever it [took] to keep from provoking him, and I felt like if I got him to be friends that sooner or later he would get the message and leave me alone, but he never did.”

On the few occasions when she agreed to meet Nosratifard, the meetings did not go well. One meeting in August 2008 occurred after Nosratifard demanded that Maxie get her belongings from his cabinet shop. Maxie’s adult daughter went with her to the shop, and became upset with Nosratifard’s treatment of her mother during the meeting. She shook her finger in Nosratifard’s face and told him to leave her mother alone. On the way home, Nosratifard called Maxie on her cell phone to complain about her daughter’s behavior and to threaten her family. The next day, Maxie and her children discovered that seven tires on their cars had been slashed. Maxie and Nosratifard met later in a public parking lot, and Nosratifard told Maxie that he had slashed the tires on her children’s cars. Maxie reported these incidents to the police.

In January 2009, Nosratifard called Maxie repeatedly, screaming, cursing, and demanding that she return everything that he had ever bought for her. Maxie contacted police to report Nosratifard’s continuing behavior and subsequently obtained a Temporary Protective Order (“TPO”). On the day she obtained the TPO, Nosratifard called her beginning at 5:00 a.m. and continued throughout the day, even after the order was issued. Maxie decided to meet Nosratifard at a gas station on the way home from court to give him the things he wanted, hoping that would satisfy him. But he became upset and began tossing things around, so Maxie got in her car and drove away. A few days later, Maxie noticed Nosratifard following her to work at around 4:30 a.m., and she called and asked him to stop. In February 2009, a hearing was held on her request to extend the TPO, but after Nosratifard agreed to leave her alone, the judge denied her request.

The next day, Maxie saw Nosratifard parked in an overlook near her house as she was driving home. He motioned her over, and she stopped because she was afraid of what might happen if she did not. Nosratifard gloated about beating her in court, and told her that she needed to get the TPO cleared from his record, or he was going to show her “what revenge is all about.” Later that month, Maxie saw Nosratifard again parked in the overlook. He waved her over, but she did not stop. He followed her, passing three vehicles to get directly behind her, and flashed his lights on and off signaling her to stop. Maxie called 911 to report his behavior. Maxie felt threatened by Nosratifard’s behavior. In February 2009, she installed a security fence, security lights and a camera at her home; she also purchased a gun and a dog.

Maxie and her daughter began shopping in an adjacent county to avoid Nosratifard, but on March 1, 2009, they observed a white truck following them and were able to get the tag number. Police later identified the truck as a vehicle rented by Nosratifard. Two days later, on March 3, 2009, Maxie saw Nosratifard standing beside his truck, which, once again, was parked in the overlook. He tried to wave her over, but she kept driving. When Maxie saw Nosratifard pass a car so he could be directly behind her, she called police. He repeatedly closed in on her car, and she was afraid that he was going to hit her. When they came to a stop light, Nosratifard started to get out of his car, but the light changed to green, and Maxie sped off, taking a left turn from the right lane. Nosratifard pulled beside her car and began shaking his finger and screaming obscenities at her. She pulled into a gas station, and when police arrived Nosratifard was placed under arrest for aggressive driving. Maxie obtained a second TPO the next day. WTiile Nosratifard was in jail, Maxie and her children all changed their cell phone numbers.

Nosratifard posted bond for his release on or about March 9, 2009, and one of the special conditions of his bond order provided:

The Defendant shall stay away, absolutely, directly or indirectly, by person, telephone, e-mail, messenger or any other means of communication from KAREN MAXIE hereinafter referred to as “victim.” That includes, but is not limited to, the victim’s home, school, and place of business or routes of travel to or from those locations. Violations connected with contacting/following the victim may subject the Defendant to a separate prosecution for the felony offense of Aggravated Stalking.

Although Maxie and her family had been receiving text messages they believed to be from Nosratifard since 2008, they received no texts while Nosratifard was in jail on the driving charge. But after Nosratifard bonded out of jail, Maxie and her children began receiving hang-up calls on their home phone number. They did not recognize the numbers showing on the caller ID for these calls. In addition, they began receiving text messages on their cell phones from numbers they did not recognize. Maxie and her children testified that from the spelling, choppy English, certain phrases and the content of the texts, they believed that Nosratifard was sending these texts. For example, one text included the language “we need to talk face to face,” which Maxie and her son identified as a phrase Nosratifard used repeatedly. Another text states, “ask your mamy [sic] she knows,” and Maxie and her children testified that Nosratifard often referred to Maxie as her children’s “mammy” because he thought she babied them. Other texts referred to Maxie’s reports to the police, and Nosratifard was aware that Maxie had reported his actions to the police. Another text referred to voice recordings of phone messages from Nosratifard that Maxie had given police.

The police were present when Maxie received some of these texts. Deputy Sheriff Brian Sadler of the Forsyth County Sheriff’s Office arrived at Maxie’s house at 8:19 p.m. on April 2, 2009,® after she notified police that she was receiving harassing phone calls. He observed that Maxie was extremely nervous and frightened. The house phone rang continuously, approximately ten to fifteen times while Sadler was there, and she was receiving text messages. At 8:32 p.m., she received the text at issue in Count IV, which stated, “I know you will show all off [sic] this text to the police but don’t because more trouble for you.” Because this text referred to the police within minutes after Sadler entered Maxie’s house, he became concerned that Nosratifard was keeping the house under surveillance. He called for back-up and searched outside, but the police did not locate anyone.

When Investigator Matthew Starr of the Forsyth County Police Department attempted to trace the phone numbers from which the hang-up calls and text messages were sent, he discovered that most of the messages and calls came from prepaid phones, for most of which no provider could be identified, and thus he was unable to connect Nosratifard with any of those phone numbers. However, he was able to trace one of the numbers from the hang-up calls to a pay phone located approximately five to ten minutes from Nosratifard’s cabinet shop.

Nosratifard was arrested on April 28,2009, and charged with the five counts of aggravated stalking, arising out of five text messages sent to Maxie’s phone between March 21 and April 15, 2009. Maxie and her children received no further text messages after Nosratifard was arrested on these charges.

1. Nosratifard asserts that the evidence was insufficient to support his convictions because the State produced only circumstantial evidence to prove that he sent the texts and failed to exclude every other reasonable hypothesis except that of his guilt. Nosratifard points to testimony from Maxie’s son that in October 2008, he received a large amount of texts and hang-up calls, which he attributed to Nosratifard, but Maxie’s son conceded that Nosratifard was at Maxie’s house in connection with his cabinet business when some of these calls and texts were received. Nosratifard also points to evidence that two Hispanic males were caught on the security camera slashing the tires on Maxie’s and her children’s cars in February 2009. He argues that this evidence demonstrates that someone else could have been harassing Maxie and her children.

Nosratifard is correct that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.® But “the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else.” (Citation and punctuation omitted; emphasis in original.) Prather v. State, 293 Ga. App. 312, 313 (1) (667 SE2d 113) (2008). And it is well settled that

questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Citation omitted.) Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998). “The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind.” (Citation omitted.) Giles v. State, 211 Ga. App. 594, 595 (1) (440 SE2d 48) (1993).

To prove that Nosratifard was guilty of aggravated stalking, the State was required to show

(1) that a protective order prohibited [Nosratifard] from engaging in certain conduct with respect to [Maxie]; (2) that [Nosratifard] followed [Maxie], placed her under surveillance, or contacted her without her consent; (3) that such an act violated the protective order; and (4) that such an act was done for the purpose of harassing and intimidating [Maxie].

(Citation omitted.) Louisyr v. State, 307 Ga. App. 724, 728 (1) (706 SE2d 114) (2011). See also OCGA § 16-5-91 (a).

Nosratifard’s March 9, 2009 bond order prohibited him from communicating with Maxie by telephone or any other means. Text messages clearly would be a prohibited form of communication in violation of the bond order, and the texts at issue were sent after the order was issued. Although the State was not able to connect Nosratifard directly to any of the numbers used to send these texts, Maxie and her children testified that the texts contained phrases often used by Nosratifard, references to information known by Nosratifard, and “broken English” similar to that employed by Nosratifard. Moreover, the text messages stopped when Nosratifard was in jail on the driving charge, resumed when he bonded out and stopped completely when he was arrested on the charges in this case. The jury considered the evidence cited by Nosratifard, which related to actions prior to the entry of the bond order, and determined that Nosratifard sent the text messages in this case. Because this finding “is not insupportable as a matter of law or outside the proven facts, we shall not disturb it.” (Citations omitted.) Giles v. State, 211 Ga. App. at 595 (1).

The State was also required to prove that Nosratifard sent the texts for the purpose of harassing and intimidating Maxie. The definition of “harassing and intimidating” in this context is found under the stalking statute, OCGA § 16-5-90 (a) (1), and it involves four factors of its own:

(1) a knowing and willful course of conduct directed at [Maxie] (2) which causes emotionál distress by placing [Maxie] in reasonable fear for her safety (3) by establishing a pattern of harassing and intimidating behavior, and (4) which serves no legitimate purpose. OCGA § 16-5-90 (a) (1).

(Punctuation omitted.) Burke v. State, 297 Ga. App. 38, 41-42 (676 SE2d 766) (2009). The evidence at trial supported a finding of a long and clear pattern of knowing and wilful, harassing and intimidating behavior by Nosratifard directed at Maxie for no legitimate purpose. The text messages themselves, sent on three separate days, establish such a pattern. And this evidence combined with Nosratifard’s other threatening behavior and Maxie’s testimony that she was so scared she felt compelled to undertake security measures was more than sufficient to establish the last element of the crime of aggravated stalking as to each count of the indictment.

Thus,

[e]ven though there was no direct evidence that defendant committed the crime, we conclude that the evidence meets the standard set forth in Jackson v. Virginia, [443 U. S. 307], in that a rational trier of fact could find proof of guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.

(Citation omitted.) Giles v. State, 211 Ga. App. at 595-596 (1).

2. Nosratifard also argues that the trial court should have merged Count I, involving a text sent on March 21,2009, at 6:56 p.m., with Count II, involving a text sent the same day at 7:18 p.m., for sentencing because they “are part and parcel of the same criminal act.” He makes the same contention as to Count III, involving a text sent April 2,2009, at 7:08 p.m., and Count IV, involving a text sent the same day at 8:32 p.m., because he asserts that they were sent as part of an ongoing conversation that began at 6:43 p.m. that day.

“The doctrine of merger precludes the imposition of multiple punishments when the same conduct establishes the commission of more than one crime. Whether offenses merge is a legal question, which we review de novo.” (Citations and punctuation omitted.) Louisyr v. State, 307 Ga.App. at 730 (2). But even if we were to assume that the texts sent on the same day were part of a continuous course of conduct, merger would not necessarily be required under the facts of this case. Rather, “whether a course of conduct can result in multiple violations of the same statute .. . requires a determination of the ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” (Footnotes omitted.) State v. Marlowe, 277 Ga. 383, 384 (1) (589 SE2d 69) (2003). “Accordingly, the starting point must be the statute itself.” Id.

OCGA § 16-5-91 (a) provides:

A person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to Code Section 17-6-110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, goodbehaviorbond, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

Based upon the plain language of the statute, the prohibited conduct is following, placing under surveillance, or contacting another person without consent in violation of one of the enumerated orders or conditions for the purposes of harassing or intimidating that person. Thus, under the facts of this case, the unauthorized act of contacting Maxie in violation of the condition of the bond order forms the proper “unit of prosecution” under OCGA § 16-5-91 (a). This interpretation is consistent with this Court’s prior decisions holding that “[e]ven a single violation of a [bond] order may violate OCGA § 16-5-91 (a) if that violation is part of a pattern of harassing and intimidating behavior.” Brooks v. State, 313 Ga. App. 789, 792 (1) (723 SE2d 29) (2012), citing Louisyr v. State, 307 Ga. App. at 729 (1) (rejecting argument that aggravated stalking requires a pattern of violating a protective order).

Nosratifard points to nothing in the record to indicate that the texts at issue in Counts I and II, sent on March 21, were part of any ongoing conversation with Maxie or anyone else. Rather, they represent two separate contacts with Maxie in violation of the special condition in his bond order, and the trial court correctly refused to merge them.

Although the evidence does demonstrate that the text messages referenced in Counts III and IV are two of fifteen texts sent to Maxie on April 2, we find that they are separate contacts in violation of the aggravated stalking statute. The record shows that Nosratifard initiated the contact on April 2 to both Maxie and her daughter, who were sitting beside each other when they received the text. That text read simply, “What’s up?” and the daughter decided to respond on her phone to try to get Nosratifard to incriminate himself. Maxie testified, however, that she did not respond to any of the texts because she was too afraid. As the exchange of texts progressed, Nosratifard was apparently on notice that the person responding was not Maxie because at 6:52 p.m., he directed the other person to “ask your mamy[;] she knows,” although some of the other texts in the conversation appear to be directed to Maxie. The evidence indicates that Nosratifard sent the text message at issue in Count III at 7:08 p.m. to both Maxie and her daughter. Nosratifard and Maxie’s daughter continued exchanging messages until the last message came from Nosratifard at 8:55 p.m.

The evidence also shows that Nosratifard separately sent the text message at issue in Count IV, which referenced the police, to Maxie at 8:32 p.m. while Deputy Sadler was there. And that text does not appear in the text messages taken from the daughter’s phone. The evidence supports a finding, therefore, that the text message in Count IV was not part of any ongoing conversation, but was a separate and independent contact with Maxie. Thus, each of the texts at issue constituted a separate violation of Nosratifard’s bond order and each supported a separate charge of aggravated stalking.

Accordingly, we find no error in the trial court’s decision not to merge any of the counts for sentencing. See Louisyr v. State, 307 Ga. App. at 731 (2) (merger not required for one count of aggravated stalking based upon defendant’s following victim to hotel and second count based upon his attempt to enter her hotel room in violation of protective order). See also Smith v. State, 290 Ga. 768, 773-774 (3) (723 SE2d 915) (2012) (finding no merger required for five counts of attempting to elude a police officer where defendant led police “on a dangerous high speed chase after being given clear signals by five separate police vehicles to stop” because unit of prosecution under OCGA § 40-6-395 was act of fleeing from an individual police vehicle or officer after being given the signal to stop by that vehicle or officer); Ledford v. State, 289 Ga. 70, 71-72 (1) (709 SE2d 239) (2011) (three counts of aggravated battery did not merge where each count was predicated on a different injury and thus different conduct by the defendant and testimony of pathologist showed that each injury was caused by separate blows to the victim’s body); Eskew v. State, 309 Ga. App. 44, 48-49 (4) (709 SE2d 893) (2011) (no merger required for two counts of aggravated battery where one count charged defendant with violently shaking six-month-old baby and second count charged defendant with fracturing his skull where expert testified that there must have been some kind of impact to the child’s head in addition to the shaking to account for the fractured skull). Compare Gonzales v. State, 298 Ga. App. 821, 824 (1) (681 SE2d 248) (2009) (merger required for two counts of aggravated battery arising out of single act of pushing victim out of a moving car); McKee v. State, 275 Ga. App. 646, 651 (5) (621 SE2d 611) (2005) (criminal conduct constituted a single course of conduct spanning several days, not a separate offense of cruelty to children for each day, where unit of prosecution was causing a child excessive physical or mental pain and statute did not define crime temporally).

Decided March 20, 2013.

Sharon L. Hopkins, for appellant.

Penny A. Penn, District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       Earlier the same day, Maxie’s son saw Nosratifard following him when he left school for a work program, although the son was able to lose him when he turned into a school parking lot.

       Nosratifard was convicted of this charge in October 2009.

       The texts at issue in Counts III and IV were received on April 2.

       Starr described a prepaid phone as “basically an untraceable phone,” with no means of tracing it through records to a specific individual.

       Maxie and her children did not recognize the individuals shown on the tape. And Maxie testified that Nosratifard often hired Hispanic workers at his shop.

       Although this statute was repealed by Ga. L. 2011, p. 99, § 2 as of January 1,2013, it was in effect at the time of Nosratifard’s trial. In any event, OCGA § 24-14-6 of the current evidentiary code contains identical language.

       The text message in Count V was sent on April 15, 2009, at 7:53 p.m., again at 7:56 p.m. and again at 9:09 p.m.

       “Because the instant case does not involve two distinct statutory provisions, the ‘required evidence’ test does not apply.” (Citation omitted.) Smith v. State, 290 Ga. 768, 773 (3), n. 4 (723 SE2d 915) (2012). See also Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006).

       That text read, “I want to help you trust me. I am not that scarry [sic] am I?” Maxie felt the use of the word “scary” also helped Maxie identify Nosratifard as the sender because he used to tell her that people found him scary, and she also used to tell him that he had scary facial expressions.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A2420.
    LEE v. THE STATE.
    (740 SE2d 307)
   Branch, Judge.

Rebel Keith Lee was tried by a Douglas County jury and convicted of two counts of aggravated assault, and a single count each of theft by receiving stolen property, fleeing or attempting to elude a police officer, obstruction of a law enforcement officer, failure to stop at or return to the scene of an accident, and reckless driving. He now appeals from the denial of his motion for a new trial, asserting that the evidence was insufficient to sustain his convictions for aggravated assault and theft by receiving. Lee further contends that the trial court erred in refusing to give his requested jury instruction on accident and in sentencing him as a recidivist. We find no error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that late on the evening of March 1, 2008, a minivan was stolen from a residence in Austell, approximately two miles from the address where Lee then resided. The owners of the minivan immediately reported its theft to police.

The following morning, officers with the Douglas County Sheriff’s Department were advised to be on the lookout for the stolen vehicle, which was described as a silver Town and Country minivan with a “breast cancer” license plate. Shortly after receiving this advisory, Sergeant Rodney Houston of the Sheriff’s Department saw a vehicle matching that description, being driven by Lee, near the intersection of Lee Road and Highway 92. Sergeant Houston began to follow the minivan and transmitted its license plate number to dispatch. Dispatch responded that the vehicle had been reported as stolen, and the sergeant requested backup. As Sergeant Houston was following the minivan in his marked patrol car, the stolen vehicle suddenly accelerated. The sergeant kept pace with the minivan and, after he was joined by a second patrol car, he activated the lights and siren on his vehicle. Rather than pulling over and stopping the minivan, however, Lee accelerated in an apparent attempt to outrun the police. During this part of the pursuit, the minivan reached speeds of between 70 and 80 mph, in an area where the posted speed limit was 35 mph.

As the pursuit proceeded southbound on Lee Road, the minivan came up behind another vehicle, being driven by Henry Carter. In an attempt to pass Carter’s car, Lee pulled the minivan into the middle of the road, driving between Carter’s car and oncoming cars in the opposite lane of traffic. Before he could pass Carter’s car, Lee saw another vehicle traveling in the northbound lane and headed for a collision with the minivan. Rather than decelerating and pulling in behind Carter’s car, Lee steered back into the southbound lane, making contact with Carter’s vehicle and forcing it off the road.

The pursuit of Lee then continued, with Sergeant Houston driving at speeds of up to 104 mph simply to maintain sight of the minivan. Lee eventually missed a turn he was attempting to make and ran the minivan up onto a curb, causing significant damage to the vehicle. At that point, Lee abandoned the minivan and ran into a nearby wooded area, ignoring Sergeant Houston’s verbal commands to halt. Lee was apprehended a short time later by officers who approached him from the opposite direction.

Henry Carter testified at trial about being forced off the road by Lee, as did his son, who was a passenger in Carter’s car at the time of the incident. As Carter explained, the minivan first approached him from behind and rode his bumper, and Lee then pulled the stolen minivan into the middle of the road, driving between Carter’s car and two cars traveling in the opposite direction. After seeing a third car headed toward the minivan in the northbound lane, Lee turned the van into Carter’s car, made contact with it, and then proceeded to “keep pushing [Carter’s car] off the road,” eventually forcing it off the road entirely. Carter also stated that when the minivan made contact with his car, he feared both he and his son would be injured.

Carter’s son, Royce Davis, testified that he was unaware of the minivan until it made contact with his father’s car, but that when the contact occurred and when Lee forced his father’s car off the road, Davis was frightened.

A video of the entire police chase, recorded by the camera in Sergeant Houston’s patrol car, was introduced into evidence and played for the jury at trial. That video corroborated the testimony of the officers involved in the pursuit of Lee as well as the testimony of Henry Carter and his son.

The State also introduced similar transaction evidence, which showed that on five different prior occasions between November 1995 and August 2006, Lee led law enforcement officers on high speed chases after they attempted a traffic stop of the vehicle Lee was driving. On one of those occasions, Lee was driving a stolen car. Additionally, during each of these five prior incidents, Lee drove at speeds well in excess of the posted speed limit and committed numerous traffic violations in his efforts to avoid police. The evidence showed that on multiple occasions Lee drove in the opposite lane of traffic, forced police cars and civilian vehicles off the road, and deliberately crashed his vehicle into a patrol car. Video of two of these police chases was introduced into evidence and played for the jury.

Based on the foregoing evidence, the jury found Lee guilty. The trial court then held a sentencing hearing to receive evidence regarding, inter alia, the State’s request that Lee be sentenced as a recidivist pursuant to OCGA § 17-10-7 (c). At that hearing the State introduced certified copies of Lee’s four previous felony convictions, which included one conviction for fleeing from and eluding a police officer and three convictions for possession of cocaine. Based on this evidence, the trial court sentenced Lee as a recidivist.

After the entry of his conviction and sentence, Lee filed a motion for a new trial, which was denied. This appeal followed.

1. “When we consider whether the evidence is sufficient to sustain a conviction, we ask 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.) Louisyr v. State, 307 Ga. App. 724, 727-728 (1) (706 SE2d 114) (2011). As we have explained before,

it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. So, if the record contains some competent evidence to prove each element of the crime [s] of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction.

(Citation and punctuation omitted.) Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010).

(a) Lee argues that the evidence cannot support his conviction for aggravated assault of Henry Carter, because the State proved only that his contact with Carter’s car was accidental, and it therefore failed to prove that he intended to injure Carter. This argument, however, ignores the fact that the State is not required to prove an intent to injure in all aggravated assault cases.

A conviction for aggravated assault requires proof of two essential elements: (1) an assault, as defined in OCGA § 16-5-20, and (2) aggravation by use of a deadly weapon, see OCGA § 16-5-21 (a) (2). The State may prove an assault by showing that the defendant committed an act that placed the victim “in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). And where the assault element of an aggravated assault charge is predicated on OCGA § 16-5-20 (a) (2), the State is not required to prove that the defendant acted with an intent to injure the victim. Bishop v. State, 266 Ga. App. 129, 131 (2) (596 SE2d 674) (2004). Rather, it need only prove that the defendant intended to commit the act which placed the victim “in reasonable apprehension of injury.” (Citation omitted.) Smith v. State, 280 Ga. 490, 492 (1) (629 SE2d 816) (2006).

Here, Lee does not dispute that, under the circumstances of this case, the stolen minivan constituted a deadly weapon. See Barnes v. State, 296 Ga. App. 493, 495 (675 SE2d 233) (2009) (“Although an automobile is not a deadly weapon per se, it may become one depending on the manner and means by which it is used.”) (footnote omitted); Kirkland v. State, 282 Ga. App. 331, 333 (1) (638 SE2d 784) (2006) (“no question exists that an automobile can be a ‘deadly weapon’ ”). Moreover, the evidence at trial, including the testimony of Carter, established that Lee’s conduct in striking Carter’s car and forcing it off the road placed Carter in reasonable apprehension of receiving a serious bodily injury. The evidence also supported the conclusion that the incident with Carter was neither instantaneous nor unavoidable, i.e., that Lee intended to drive into Carter’s automobile. Accordingly, the evidence is sufficient to sustain Lee’s conviction for aggravated assault of Henry Carter. Id. (victim’s testimony that he feared for his life when defendant drove away while victim was hanging onto defendant’s car, together with evidence supporting an inference that the defendant intended to drive away with victim in that position, authorized conviction for aggravated assault).

(b) Lee next argues that the evidence was insufficient to sustain his conviction for the aggravated assault of Royce Davis, because the State failed to show that his conduct placed Davis in apprehension of receiving an injury. In support of this argument, Lee cites Davis’s testimony that he was unaware of the stolen minivan before it struck his father’s car. This argument, however, ignores the evidence showing that Lee intentionally steered the minivan into Carter’s car, as well as Davis’s testimony that when the minivan struck his father’s car, Davis was scared. It also ignores the evidence, including the video evidence, showing that Lee did not succeed in forcing Carter’s car off the road until after he struck it with the minivan, i.e., until after Davis was aware of the minivan and its actions. Davis’s testimony, together with the other evidence of record, sufficed to show that Davis was in reasonable fear of receiving a bodily injury as a result of Lee’s assault with the minivan. See Williams v. State, 299 Ga. App. 345, 346-347 (682 SE2d 586) (2009) (“Whether a victim has been placed in reasonable apprehension of injury is a question of fact, which may be established by indirect or circumstantial evidence.”) (citation omitted).

(c) Under Georgia law, “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” OCGA § 16-8-7 (a). On appeal, Lee argues that the State failed to prove that he knew or should have known the minivan was stolen. We disagree.

As we have previously recognized, “[b]eeause of its very nature, [the] crime [of theft by receiving] is one that is usually proved in whole or in part by circumstantial evidence.” (Citation and punctuation omitted.) Gillis v. State, 315 Ga. App. 803, 805 (728 SE2d 324) (2012). Thus, possession of recently stolen property, together with circumstantial evidence supporting an inference the defendant knew the property was stolen, will sustain a conviction for this crime. See Dawson v. State, 271 Ga. App. 217, 218 (1) (609 SE2d 158) (2005). Here, the evidence showed that Lee was found in possession of the minivan only 12 hours after it was stolen. Additionally, Lee fled when police attempted to stop him in the stolen minivan, led them on a high speed chase, and eventually abandoned the vehicle. The State also introduced similar transaction evidence showing that on at least one prior occasion Lee had fled from police while in possession of a stolen vehicle, with his flight resulting in him abandoning the car. Taken together, this evidence was sufficient to support an inference that Lee was aware that the minivan was stolen. Id. at 219 (1) (evidence that defendant possessed vehicle four days after it was stolen, fled when officers attempted to stop him, and eventually abandoned the vehicle to flee on foot, together with similar transaction evidence, was “sufficient to authorize the jury to infer guilty knowledge”). See also Reedman v. State, 265 Ga. App. 162, 164 (1) (a) (593 SE2d 46) (2003) (in theft by receiving case involving a stolen car, “the jury was authorized to infer [defendant’s] guilty knowledge from his flight and from the similar transaction evidence adduced”) (citation omitted); Moseley v. State, 225 Ga. App. 700-701 (1) (484 SE2d 768) (1997) (defendant’s possession of the recently stolen pickup truck, fact that defendant fled when seen by officers and that he “abandoned the truck and fled to a nearby house after eluding the pursuing officer in a high-speed chase” supported finding that he knew or should have known the vehicle was stolen) (citations omitted).

2. Lee further contends that the trial court erred in refusing to give his requested jury charge on accident. “We review a trial court’s refusal to give a requested jury charge under an abuse of discretion standard.” (Footnote omitted.) Turner v. State, 314 Ga. App. 263-264 (1) (724 SE2d 6) (2012). We find no abuse of discretion here.

Under OCGA § 16-2-2, “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” Accident represents an affirmative defense on which the defendant bears the burden of proof at trial. Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). Accordingly, to be entitled to a jury charge on accident, the defendant must present some evidence from which the jury could find that the defendant “acted without criminal intent and was not engaged in a criminal scheme, and that [his] actions did not show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.” (Citations and punctuation omitted.) Id. Lee presented no such evidence here, and therefore failed to raise the affirmative defense of accident. See id.; Parks v. State, 304 Ga. App. 175, 179 (3) (a) (695 SE2d 704) (2010).

Moreover, all of the evidence presented at trial showed that at the time he committed the crimes at issue, Lee was engaged in a criminal scheme to elude the police. And his actions showed an utter disregard for the safety of both law enforcement and the driving public, all of whom Lee should have reasonably anticipated might be injured by his conduct. “Consequently, the trial court did not err in refusing to give [Lee’s] requested charge on accident.” (Citation omitted.) Parks, supra at 179 (3) (a). See also Davis, supra at 280 (3) (holding that a jury instruction on the defense of accident is not warranted where a person deliberately uses a deadly weapon “to place someone in reasonable apprehension of immediate bodily injury,” even where the resulting injury to the victim was not intended) (citations omitted).

3. Lee contends that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (c) because the State’s evidence showed only that he had been convicted of two felonies. This assertion is meritless.

OCGA § 17-10-7 (c) provides, in relevant part:

... [A]ny person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

In connection with the similar transaction evidence it offered at trial, the State also introduced into evidence certified copies of two of Lee’s prior convictions, only one of which was a felony conviction. At the sentencing hearing held after Lee was convicted, however, the State introduced certified copies of four prior felony convictions of Lee, which included one prior felony conviction for fleeing from and eluding a police officer, and three prior felony convictions for possession of cocaine. This evidence established that the trial court was required to sentence Lee as a recidivist. See, e.g., Becoats v. State, 318 Ga. App. 262, 264-265 (2) (733 SE2d 795) (2012).

Decided March 20, 2013.

Houck & Regas, M. Paul Reynolds, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

For the reasons set forth above, we affirm the trial court’s denial of Lee’s motion for a new trial.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       OCGA § 16-5-21 (a) (2),

       OCGA § 16-8-7 (a).

       OCGA § 40-6-395 (a).

       OCGA § 16-10-24 (a).

       OCGA § 40-6-270 (a).

       OCGA § 40-6-390 (a).

       The owner of the minivan testified that the vehicle “was destroyed.”

       For purposes of the statute, “receiving” is defined as “acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a).

       Lee was convicted for felony attempt to elude a police officer on November 16, 2004, in Cobb County for an incident that occurred on June 4, 2004. Lee’s convictions for possession of cocaine were entered in Cobb County on July 18,1996, in Douglas County on August 12, 2002, and in Fayette County on August 16,2002. These convictions resulted from incidents occurring on November 25, 1995, December 6, 2001, and December 7, 2001, respectively.


author: RAY, Judge.

text:
    A12A2466.
    GRANGER v. THE STATE.
    (740 SE2d 313)
   RAY, Judge.

Having been convicted of statutory rape and child molestation for having sexual contact with his then fourteen-year-old niece, appellant Carey Lee Granger appeals and seeks a new trial, contending that his lawyer was ineffective, and that his case was prejudiced by (1) his lawyer’s failure to object to unfair bolstering of the victim’s testimony at trial and to improper argument put forth by the prosecutor during the closing arguments, and (2) the admission into evidence of statements made by Granger while on the phone in the police investigation room, in which he used an offensive, derogatory term. As we believe that Granger received effective legal representation and that the alleged errors, if any, were harmless, we affirm.

Construed in the light most favorable to the verdict of the jury, the evidence shows that in July 2009 that T. G., the 14-year-old female victim, was visiting family in Georgia and staying at her aunt’s home. Granger, who was then 25 and is T. G.’s uncle, came to visit her. Granger ended up staying over for the night, and he and T. G. fell asleep side by side on a couch while watching television.

What happened next was disputed at trial. T. G. claims that during the evening she awoke to Granger touching her. She contends that she told him to stop, but that he refused and threatened to hurt her if she screamed. Granger then pulled down her pants and “gently placed” his lips on her private area; pulled out his penis and put it in her private area; forced his penis inside her vagina until she “jumped back”; and pulled out his penis and demanded that she “stroke” it, at which time he ejaculated on her stomach. T. G. claimed that she did as she was told, due to his threats and out of fear that Granger would harm her if she did not. Afterward, T. G. claimed that Granger gave her a blue towel and told her to clean up the semen, which she did. Granger purportedly fell asleep thereafter.

Granger admits to having sexual contact with his niece, but claims that it was all initiated by T. G. He testified that T. G. asked him several times if he had a condom, as she wanted a condom to use with him and wanted to “get some.” She asked him to kiss her, which he refused, and she then started touching his chest and stomach. He claims that T. G. then unbuckled his pants, began touching his penis, and masturbated him. Granger claimed T. G. asked him to ejaculate on her stomach, which he did. Granger denied, however, performing any oral sex on T. G. or having sexual intercourse with her.

Upon learning the next morning of T. G.’s allegations that she had been raped by Granger, her aunt called the police, and T. G. was then taken to the hospital where a sexual assault examination was performed. A nurse testified that the evaluation revealed that T. G.’s vagina was torn and bleeding, and she also testified as to her interpretation of T. G.’s demeanor, stating on direct examination that the victim was “very shocked, very withdrawn by what had occurred.” When asked to explain this, the nurse testified that “she was not kidding with us.”

Granger was taken to the police headquarters for an interview. Although he invoked his right to counsel, thus stopping the questioning, he was recorded in the interview room some time later having a phone conversation on his cell phone with an unidentified person, wherein Granger said, “for like five minutes nigger . . . and then I stopped.” Both the nurse’s statements about T. G.’s demeanor during the hospital examination and Granger’s statement during his phone conversation were admitted at trial, without objection.

Granger faced trial on six charges: rape, aggravated child molestation, incest, sodomy, statutory rape, and child molestation. The trial court directed a verdict on the incest charge, and the jury acquitted Granger on the rape, aggravated child molestation and sodomy charges. He was convicted of only statutory rape and child molestation, for which he was sentenced to a total of 40 years, 15 to serve and 25 years on probation. It is from this conviction that Granger appeals.

1. Granger claims that his trial counsel was ineffective for failing to object to improper bolstering of T. G. through the nurse’s testimony and for failing to move for a mistrial. We disagree.

In explaining T. G.’s demeanor upon arriving at the hospital, the nurse testified that she “could tell that [T. G.] was not kidding with us.” Granger correctly points out:

The credibility of a witness, including a victim witness, is a matter for the jury’s determination under proper instruction from the court. It is well established that in no circumstance may a witness’ credibility be bolstered by the opinion of another as to whether the witness is telling the truth.

In cases involving sexual offenses, where the victim’s and the defendant’s credibility are at issue, which is often the case, a defendant might have his conviction reversed if there has been improper bolstering.

Yet, to prevail on an ineffective assistance of counsel claim, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington. Thus, Granger “must show that [his] counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for the counsel’s errors, the outcome of trial would have been different.” If an appellant fails to meet either prong of this test, the reviewing court need not examine the other prong. When reviewing a claim of ineffective assistance of counsel, this Court will not contest a trial court’s finding of effective assistance of counsel unless it was clearly erroneous. This claim was presented to the trial court within Granger’s motion for new trial, and it was denied. Bearing these principles in mind, we find no merit to Granger’s claim.

Pretermitting whether the nurse’s testimony constituted an improper bolstering of T. G.’s credibility, it was hardly beneficial to the State or harmful to Granger, as he was acquitted by the jury of rape, aggravated child molestation, and sodomy. Thus, the jury obviously accepted Granger’s contention that he had not had forced sexual intercourse with T. G., that he had not performed oral sex upon her, and that he had not physically injured her (in the process of performing sodomy upon her), thus concluding that T. G. was not credible as to the allegations supporting these charges. While Granger was convicted of both statutory rape and child molestation, independent evidence other than T. G.’s testimony provided support for these charges, namely Granger’s own testimony that he allowed her to masturbate him, the physical evidence that T. G.’s vagina was torn and bleeding, and the presence of his DNAon swabs which collected bodily fluid from T. G.’s vaginal area. Support can also be found in the circumstantial evidence of Granger’s comments captured on the video recording, which is discussed in Division 3, infra.

Accordingly, the trial court’s conclusion that trial counsel was not ineffective for failing to object to the nurse’s testimony or to move for a mistrial therefor, which was implicit in the trial court’s denial of the motion for new trial, is not clearly erroneous.

2. Granger claims that a comment made by the prosecutor during closing argument about the defense attorney’s tactics was prejudicial and that his counsel was ineffective in failing to object thereto, such that he is entitled to a new trial. We disagree.

During closing, the prosecutor pointed out that defense counsel had taken inconsistent positions during the trial, by asserting in the trial that he was not attacking T. G.’s credibility, despite clearly doing so within the defendant’s closing argument. On appeal, Granger claims the prosecutor’s comments were improper, as they were a reference to his counsel’s successful motion, made outside the presence of the jury, where he obtained a ruling to keep out of the trial T. G.’s prior consistent statements to police officers as to what happened that night, based upon the claim that Granger’s counsel had not attacked her credibility. Granger claims the prosecutor’s argument during closing constituted a personal attack upon his counsel, which was intended to cause the jury to question his lawyer’s integrity and credibility, which would thus impair the jury’s view of Granger’s own credibility. Granger also claims that the improper argument may have affected the jury’s perception of T. G.’s credibility.

First, it should be noted that the absence of a transcript of the closing argument makes it difficult to evaluate this comment made during closing, as the exact language used and the context in which the statement was made is not firmly established. Nonetheless, it does not appear that the prosecutor was clearly in error in making this argument. This is so because during the direct examination of T. G.’s mother, Granger’s trial counsel objected to her testifying as to what T. G. told her in a phone call the evening of this incident, on the grounds that such testimony would amount to improper “bolstering of a witness whose credibility has not been attacked.” This objection was made in the jury’s presence. Thus, the prosecutor’s closing argument regarding inconsistent positions being taken during the trial regarding T. G.’s credibility seems to have been fair. This conclusion is especially appropriate given the “wide leeway given to argue all reasonable inferences that may be drawn from the evidence during closing argument,” and that permissible argument may properly include that which illustrates inconsistencies “within the defense as a whole . . . .”

In denying the motion for a new trial on this ground, the trial court concluded that this comment was directed at Granger’s defense counsel, not Granger himself, and that it was not harmful in any event due to the overwhelming weight of the evidence. Any claim that it harmed Granger’s credibility, or his case, is belied by the fact that he was acquitted on three serious charges where his testimony and that of T. G.’s differed as to what transpired. As is typical, the trial court instructed the jury that what the attorneys say is not evidence and that it was the jury’s responsibility to determine the case based on the evidence presented in court. Under these circumstances, we cannot say that Granger’s counsel was ineffective for failing to object to these comments, that such an objection was warranted, or that Granger was harmed by the comments in the first place.

3. Granger claims that the trial court erroneously admitted a video of Granger’s phone conversation while in the police interview room. We disagree.

Admissibility of evidence is a matter which rests largely within the discretion of the trial court. Any evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. Georgia law favors the admission of any relevant evidence, no matter how slight its probative value, and even evidence of questionable or doubtful relevancy or competency should be admitted and its weight left to the jurors.

Decided March 20, 2013.

Benjamin D. Goldberg, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

The contested statement, “[f]or like five minutes nigger . .. and then I stopped,” is arguably a reference by Granger to having had sex with T. G., particularly when you consider that he was in the police station for an interview based upon allegations of that very fact. It was, thus, highly relevant and probative. Although the term Granger used in referring to his listener was distasteful, it was not directed at the victim. It is hard to see how under these circumstances it could summon any prejudice that would inure to Granger’s detriment. Indeed, he was acquitted of many serious charges, and other evidence of his guilt was overwhelming. At the very least, its probative value outweighed any prejudice to Granger, and its admission as evidence in his case was proper.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-6-3.

       OCGA § 16-6-4 (a).

        Al-Amin v. State, 278 Ga. 74, 74 (1) (597 SE2d 332) (2004).

       Granger is the half brother of T. G.’s mother. This fact served as the basis for the trial court’s grant of a directed verdict on the incest charge.

       (Citations and punctuation omitted.) Gaston v. State, 317 Ga. App. 645, 647-648 (1) (731 SE2d 79) (2012).

        See Walker v. State, 296 Ga. App. 531, 535 (1) (b) (675 SE2d 270) (2009); Orr v. State, 262 Ga. App. 125, 128 (2) (584 SE2d 720) (2003); Mann v. State, 252 Ga. App. 70,72-73 (1) (555 SE2d 527) (2001).

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

       (Citations omitted.) Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011).

       Id.

        Mealor v. State, 266 Ga. App. 274, 276 (596 SE2d 632) (2004).

       See id. at 278-279 (c) (despite improper bolstering, no ineffective assistance of counsel due to other evidence of guilt).

        Johnson v. State, 301 Ga. App. 423, 424-426 (687 SE2d 663) (2009).

       Closing arguments were not taken down, and there is no transcript to review thereof. Yet, the trial court’s order denying the motion for new trial acknowledges that such a statement was made.

       Absent both a transcript and stipulation as to what occurred, this Court need not review this enumeration. See Lyle v. State, 131 Ga. App. 8, 10 (5) (205 SE2d 126) (1974).

        Appling v. State, 281 Ga. 590, 592-593 (5) (642 SE2d 37) (2007).

        Mojica v. State, 210 Ga. App. 826, 826 (1) (437 SE2d 806) (1993) (A party seeking a reversal must show not only error, but injury arising from the error alleged.).

       See Long v. State, 287 Ga. 886, 891 (4) (700 SE2d 399) (2010).

       (Punctuation and footnotes omitted.) Ward v. State, 274 Ga. App. 511, 513 (3) (618 SE2d 154) (2005).


author: Boggs, Judge.

text:
    A12A1672.
    MAURER v. THE STATE.
    (740 SE2d 318)
   Boggs, Judge.

A jury found David Edward Maurer guilty of child molestation. Following the denial of his amended motion for new trial, Maurer appeals, asserting several claims of error. Having reviewed these claims, we discern no error and affirm.

Construed in favor of the verdict, the evidence showed that in July 2007 Maurer was watching a movie in the garage while lying on a blow-up mattress with his then ten-year-old stepdaughter V. G. and her younger brother. At some point, after the younger brother had fallen asleep, Maurer made V. G. massage his penis to the point of ejaculation. The next day, V. G. told her older brother B. G. what happened the night before. The following week, the brother disclosed to his mother what V. G. had told him. The family said nothing about the incident until two years later, when the mother told a close friend what Maurer had done to V. G. The friend reported the incident to police.

V. G. took the stand, and when asked about what occurred in July 2007 she responded, “I don’t want to talk about it,” and repeated that assertion throughout her testimony. She explained that Maurer “was a great father to all of us and we cared very much about him and I don’t want to talk about it and I don’t want to see him get prosecuted or anything. That’s why I don’t want to talk about it.” When asked why she “can’t come in here and tell the truth about what happened,” V. G. stated, “Because we had forgave [sic] him a long time ago and I don’t want anything to happen to him.” And when asked “what did you forgive him for?,” she replied, “I don’t want to say.” She did state, however, that Maurer was her stepfather, that he lived with her and her family in July 2007, that during that month, she was watching a movie with Maurer and her younger brother in the garage, and that her younger brother fell asleep. She acknowledged that she spoke with a forensic interviewer, stated that what she told the interviewer was the truth, and admitted that she had told her older brother B. G. “about something that happened.”

The forensic interviewer testified that she interviewed V. G. in January 2009. Using an anatomical drawing, V. G. indicated that Maurer made her touch his penis. In the forensic interview, admitted into evidence and played for the jury, V. G. stated that she was lying between Maurer and her younger brother while watching a movie in the garage. She explained that Maurer pushed his shorts down, grabbed her hand, put it on his penis, and moved it up and down. She said that Maurer was drunk and was “pushing her down” under the covers. V. G. explained further that something white “squirted out” and onto her forehead. She heard Maurer say “I’m sorry, I’m sorry,” as he fell asleep.

V. G. told the interviewer that the next day, she told B. G. what happened the night before and that B. G. told her mother the following week. She stated that the three of them discussed the incident as a family and that she forgave Maurer. Near the end of the interview, V. G. stated that she had nightmares following the incident.

V. G.’s older brother, B. G., took the stand and when asked about “something troubling [him] in July of 2007,” he responded, “I don’t really want to answer any questions or anything.” B. G. admitted that the prosecutor talked to him the Friday before trial and that they “went over a lot of things that your sister, [V. G.], had told you[.]” He too stated, “I just don’t want to see him prosecuted or anything like that. . . he’s always been there for us.”

V. G.’s mother took the stand and initially stated that she did not “want to answer any questions” and that she “want[ed] to end this. I don’t want to see [Maurer] prosecuted. I care a lot about him.” When the trial court directed her to answer the questions posed by counsel, the mother stated that B. G. “told me that one night when we were at home watching movies the kids decided to go watch a movie... he told me that [V. G.] had told him what — that [V. G.] told him that next morning that [Maurer] had [V. G.] massage his private ... his penis.” She stated further that B. G. told her he observed “some stuff on [V. G.’s] hair, just some white stuff.” The mother testified that she asked V. G. “if what [B. G.] was saying was true and she just nodded her head. . . . She said yes. She nodded [her head] and was crying.” When she later asked V. G. exactly what happened, V. G. told her that Maurer had her touch and massage his penis and that V. G. demonstrated that she did so “with her hand going up and down.” She explained further that she, V. G. and B. G. “talked about it... and we decided to give him another chance because we believe he was drunk. He had been drinking a lot at the time.”

A detective testified that the mother told her that “in July of 2007 [Maurer] had made her daughter, [V. G.], touch his private. It was disclosed to her by her older son when [V. G.] woke up ... he saw her and she had some stuff on her head and in her hair.” Maurer agreed to speak with police, and in a recorded interview, admitted into evidence and played for the jury, Maurer told the detective that he did watch a movie on a mattress with V. G. and her younger brother in the garage and that the three of them fell asleep. But he explained that he had no memory of what happened that night and that he was “excessively’ drunk. At different times during the interview, Maurer stated he did not believe that he had V. G. touch him, but at other points he stated that it must be true because it was what he was told, and that he “can’t see [V. G.] making it up.” Maurer explained that his family had forgiven him and that they were trying to move past the incident in the hopes that V. G. would forget.

1. Maurer argues that the evidence was insufficient to sustain his conviction.

On appeal of a criminal conviction, this Court’s duty is to determine 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 SC 2781, 61 LE2d 560) (1979). The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Walker v. State, 282 Ga. 406 (651 SE2d 12) (2007). The evidence summarized above was sufficient to sustain Maurer’s conviction for child molestation under the standard of Jackson, supra. See OCGA § 16-6-4 (a) (1) (a person commits child molestation when he does 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”); Westbrooks v. State, 309 Ga. App. 398, 400-401 (1) (710 SE2d 594) (2011) (evidence sufficient to sustain child molestation conviction; although victim did not provide details of molestation, stepuncle and forensic interviewer testified to victim’s disclosure); Amerson v. State, 268 Ga. App. 855 (1) (602 SE2d 857) (2004) (evidence sufficient to sustain molestation conviction; although victim refused to speak, forensic interview was admitted into evidence).

2. Maurer argues that his Sixth Amendment right to confrontation was violated because the trial court failed to compel V. G. to testify. V. G. took the stand and testified, but refused to answer questions concerning what occurred on the night she and her younger brother were in the garage with Maurer. She did state, however, that what she told the forensic interviewer was the truth, and that she had also told B. G. about the incident.

Under [former] OCGA § 24-3-16,[] hearsay statements by underage victims of sexual abuse are admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under [former] OCGA § 24-3-16 only if the trial court abused its discretion.

Estrada v. State, 319 Ga. App. 762, 763 (1) (738 SE2d 344) (2013).

The Supreme Court of Georgia has recently held that to comport with the Confrontation Clause, the child whose statements are at issue must actually testify at trial. Hatley v. State, 290 Ga. 480, 483 (I) (722 SE2d 67) (2012); see Bunn v. State, 291 Ga. 183, 189 (2) (b), n. 4 (728 SE2d 569) (2012). But former OCGA § 24-3-16 “does not require the child to corroborate the hearsay testimony.” (Citations and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 194 (1) (491 SE2d 387) (1997). And the right of confrontation may be waived by the failure to object. Hatley, supra. Here, Maurer made no objection that his right to confrontation was violated by V. G.’s failure to answer questions concerning the incident. Moreover, we find no authority requiring that V. G. be compelled to testify about the incident. Indeed, one of the reasons for allowing a child victim’s hearsay statement to come into evidence is “society’s desire to spare children who are subjected to abuse from further unnecessary trauma in the courtroom.” (Citation and punctuation omitted.) Bunn, supra, 291 Ga. at 187 (2) (b).

3. Maurer argues that the State was allowed to improperly introduce hearsay through its questioning of V. G. But because, as Maurer acknowledges, he made no objection to the State’s questioning of V. G. on this ground, the issue is waived. See Holt v. State, 244 Ga. App. 341, 344 (2) (535 SE2d 514) (2000).

4. Maurer contends that he did not receive a fair Jackson-Denno hearing. The record reveals that after the State presented the detective’s testimony concerning Maurer’s waiver of his rights under Miranda and the voluntariness of his statement to police, the trial court ruled that Maurer’s statement to police was freely and voluntarily given. Trial counsel then informed the trial court that he had planned to call Maurer to testify on the issue. The trial court granted the request stating: “If you want to call him just for the JacksonDenno hearing I’ll reserve my ruling. I may decide that he’s not. . . didn’t do it.” Following Maurer’s testimony, the trial court again found that Maurer “knowingly and intelligently waived his Miranda rights and that whatever statement he gave was freely and voluntarily given.”

Maurer argues that the trial court’s comments indicated that it had already determined that he was guilty of the charge against him, and that therefore any determination as to the admissibility of his statement “could not have been made fairly with an eye toward the requirements of Jackson v. Denno.” But the court’s willingness to allow Maurer to reopen the evidence so that he could testify was for Maurer’s benefit. And any statement by the court that could be interpreted as an opinion of Maurer’s guilt was harmless as it was made outside the presence of the jury, and the jury was charged with determining Maurer’s guilt or innocence, not the trial court.

5. Maurer argues that it was error to allow an attorney not licensed to practice law in Georgia to present argument on his behalf. Prior to the start of trial, Maurer’s trial counsel asked the trial court for permission to allow another attorney to assist him: ‘Tour Honor, I had a motion on David Ward who is an attorney who’s licensed in North Carolina and has his application to transfer here to Georgia pending[.] I would ask if the court would admit him to assist me at trial.” After the State noted that it had no objection, the trial court agreed: “Well, I’ll so admit him and allow him to sit with you at the counsel table.”

Maurer now argues that because there was no showing of a verified application as required by the Uniform Superior Court Rules (see Uniform Superior Court Rule 4.4 (D) (1)) and no discussion of the parameters of Ward’s ability to assist, Ward’s performance on his behalf was a nullity, and he was therefore denied the effective assistance of counsel. But Maurer was represented by trial counsel with the assistance of Ward, who only argued the motion for directed verdict on Maurer’s behalf. And in the absence of a showing that Maurer was prejudiced in some way by Ward’s argument, i.e., that the outcome of the ruling on his motion for directed verdict would have been different otherwise, his claim here that he received per se ineffective assistance is without merit. See, e.g., Cornwell v. Dodd, 270 Ga. 411, 412 (2) (509 SE2d 919) (1999) (ineffective assistance claim failed where no evidence result of guilty plea hearing would have been different); King v. State, 279 Ga. App. 302, 304-305 (3) (630 SE2d 905) (2006) (ineffective assistance claim failed where no showing defendant was prejudiced by presence of co-defendant’s counsel at counsel table); cf. Simmons v. State, 291 Ga. 705, 713 (10) (a) (733 SE2d 280) (2012) (trial counsel not ineffective per se due to discipline or subsequent surrender of his license); Cornwell, supra, 270 Ga. at 412 (1) (no per se rule of ineffectiveness where counsel represented criminal defendant while suspended from practice of law for failure to comply with state bar regulations).

6. Maurer contends that he received ineffective assistance of counsel in several other respects.

To prevail on a claim of ineffective assistance, [Maurer] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). To show that the performance of his lawyer was deficient, [Maurer] must prove that [he] performed [his] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. And to show that he was prejudiced by the performance of his lawyer, [Maurer] must prove a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, [supra,] 466 U. S. at 694 (III) (B). This burden, though not impossible to carry, is a heavy one.

(Citations and punctuation omitted.) Arnold v. State, 292 Ga. 268, 269-270 (2) (737 SE2d 98) (2013). “[A]n insufficient showing on either [Strickland] prong[ ] relieves the reviewing court of the need to address the other prong.” (Citations and punctuation omitted.) Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

(a) Maurer contends that trial counsel was ineffective in failing to object that an incompetent juror was allowed to remain on the jury panel. The record reveals that at the start of voir dire examination, the court questioned the panel of jurors in accordance with OCGA § 15-12-164 (a) (l)-(4). When Juror #133 indicated that he was “not totally impartial,” the trial court found that “with one exception that the jurors are statutorily qualified.” Maurer’s counsel and the State then proceeded to conduct voir dire of all the jurors, during which Juror #133 was questioned concerning his impartiality. At the end of voir dire, trial counsel moved to strike the juror. After the prosecutor stated that he had no objection, the trial court struck the juror for cause.

Maurer complains that counsel was ineffective in failing to object that this juror was allowed to remain seated with the panel and questioned concerning his bias in the presence of the remaining qualified jurors. OCGA § 15-12-164 (c) provides: “If a juror answers any of the questions set out in subsection (a) of this Code section so as to render him incompetent or if he is found to be so by the judge, he shall be set aside for cause.” And subsection (d) provides in part: “The court shall also excuse for cause any juror who from the totality of the juror’s answers on voir dire is determined by the court to be substantially impaired in the juror’s ability to be fair and impartial.” There is no requirement that the juror be struck for cause immediately upon a negative answer to the question of whether he or she is perfectly impartial, and there is no requirement that the jury panel members be questioned outside of the presence of other panel members. See OCGA § 15-12-133 (provides right to individual examination of each prospective juror generally). Moreover, Maurer has not presented a proffer that any of the remaining j uror s were somehow affected by the questioning of Juror #133 in their presence. See, e.g., Daly v. State, 285 Ga. App. 808, 813 (4) (e) (648 SE2d 90) (2007) (absent a proffer of expert testimony, defendant failed to establish a reasonable probability that outcome of trial would have been different had counsel retained expert). He has therefore failed to meet his burden of demonstrating prejudice.

(b) Maurer complains that counsel should have objected to double hearsay through V. G.’s mother and triple hearsay through the detective as to what V. G. told B. G. and what B. G. told his mother about what occurred in the garage. But this evidence was cumulative of both the statements given by V. G. during her forensic interview and the acknowledgment during her testimony that she first told B. G. about the incident involving Maurer and that she told the forensic interviewer the truth. Therefore, there could be no harm in the admission of this evidence. See Obeginski v. State, 313 Ga. App. 567, 570 (2) (722 SE2d 162) (2012) (failure to object to evidence that was cumulative of evidence presented in forensic interview did not amount to ineffective assistance); Williams v. State, 304 Ga. App. 592, 595 (3) (696 SE2d 512) (2010) (hearsay harmless when statements are cumulative of other admissible evidence).

(c) Maurer argues that trial counsel failed to object to the State’s improper impeachment of V. G.’s brother, B. G., after B. G. repeatedly testified that he did not want to answer questions. The State questioned B. G. concerning statements he made to the prosecutor the Friday before trial. The State asked: “Last Friday at your house do you remember telling me that [V. G.] had told you that the defendant made her grab his penis and demonstrated how he did it? Do you remember that?” B. G. responded, “I don’t want to answer that, anything, no questions.” But as explained above in Division 6 (b), this was cumulative of V. G.’s statements to the forensic interviewer and her acknowledgment that she told the interviewer the truth and told B. G. about the incident first.

(d) Maurer contends that trial counsel was ineffective “in preparing and conducting the trial.” In particular, Maurer complains that counsel failed to interview the State’s witnesses. Trial counsel testified that he did not interview the mother or Y. G., hut that he spoke briefly with B. G. He explained that his “understanding was the kids were going to take the stand and say they didn’t want to testify,” and that someone from his office interviewed V. G. and her brother and relayed to him “what their testimony may or may not be.” Maurer has therefore failed to establish deficient performance on the part of his trial counsel. Moreover, Maurer has failed to show that there is a reasonable likelihood that the outcome of the trial would have been different had counsel interviewed these witnesses himself. See Johnson v. State, 287 Ga. 767, 770 (2) (700 SE2d 346) (2010) (defendant failed to show outcome of trial would have been different if witness had been interviewed); see Hampton v. State, 279 Ga. 625, 627-628 (4) (619 SE2d 616) (2005) (ineffective assistance claim failed where defendant did not make required proffer regarding the testimony of those he contended were not adequately interviewed).

(e) Maurer argues that trial counsel was ineffective in initiating a line of questioning that suggested Maurer was guilty of the charged offense. During cross-examination, trial counsel asked V. G.’s mother, “why do you believe [Maurer] wouldn’t do this again?” The State objected to the question on the ground that it “calls for speculation and . . . goes to the ultimate issue.” The trial court overruled the objection, and V. G.’s mother answered, “Because I know he’s a good person. I know he had counseling. I know he had a lie detector test and I know he had a psychosexual test and he passed both. And I just know him. I know he’s a really good person.”

Trial counsel testified that he asked the question in order to elicit testimony from the mother

about the psychosexual and the polygraph and that [Maurer’s] not a pedo[ph]ile. . . . Because they were favorable to him. Polygraphs don’t come in period, but we were hoping she would reference the fact she did not believe he was a pedo[ph]ile, not only that she didn’t believe it but there was empirical data that shows he’s not a pedo[ph]ile.

In light of counsel’s stated strategy, “we must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Citation and punctuation omitted.) Contreras v. State, 314 Ga. App. 825, 830 (3) (726 SE2d 107) (2012). See Damerow v. State, 310 Ga. App. 530, 538 (4) (a) (ii) (714 SE2d 82) (2011) (no showing that counsel’s strategy of eliciting bolstering testimony to show inconsistency was unreasonable); Colon v. State, 275 Ga. App. 73, 82 (9) (619 SE2d 773) (2005) (full concurrence to Division 9) (counsel’s strategy to elicit testimony that witness believed victim to show victim’s lack of credibility did not amount to ineffective assistance).

(f) Maurer complains that trial counsel failed to review with him his videotaped statement and V. G.’s forensic interview. Trial counsel testified that he did in fact review with Maurer his videotaped statement to police. And “[i]t is within the trial court’s discretion to resolve conflicting testimony between trial counsel and a defendant at a hearing on motion for new trial.” (Citations and punctuation omitted.) Adkins v. State, 280 Ga. 761, 762 (2) (a) (632 SE2d 650) (2006). Even though counsel stated that he and other attorneys in his office reviewed the forensic interview of V. G. at length to determine if an expert was needed for Maurer’s defense, counsel was not asked and did not state whether he reviewed V. G.’s forensic interview with Maurer. We therefore must presume counsel was acting strategically. See Jones v. State, 304 Ga. App. 109, 114 (2) (b) (695 SE2d 665) (2010). But even if counsel failed to do so, Maurer has not made any showing that there is a reasonable probability that the outcome of the trial would have been different had counsel reviewed the interview with him. See, e.g., Coney v. State, 316 Ga. App. 303, 308 (3) (e) (728 SE2d 899) (2012) (no showing of prejudice in counsel’s failure to review video until morning of trial); Wheat v. State, 282 Ga. App. 655, 657 (1) (c) (639 SE2d 578) (2006) (no showing that outcome of trial would have been different but for counsel’s failure to have expert review victim’s videotaped statement).

(g) Maurer claims that trial counsel was ineffective in relying on a “sole defense” which had no legal basis. Maurer was charged with having V. G. touch his penis “with the intent to arouse and satisfy the sexual desires of [Maurer] and the [victim].” Trial counsel argued against the court’s giving the State’s request to charge that where an indictment charges a crime in two ways and uses the conjunctive “and,” a defendant may be convicted by proof that he violated the statute in either way. Counsel informed the court that Maurer’s defense would be that the State had failed to prove the act was done to satisfy both his sexual desires and V. G.’s.

Maurer complains that he essentially had no defense because trial counsel relied on a defense that “the law has run contrary to ... for over a hundred years.” Maurer is correct that our appellate courts have consistently held that “[i]f a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.” (Citation and punctuation omitted.) Wilson v. State, 234 Ga. App. 375 (1) (506 SE2d 882) (1998). But trial counsel testified that he pursued this “and/or” defense because he had done so in another case and a jury acquitted his client on that basis. “Generally, counsel’s decision as to which theory of defense to pursue is considered strategic and cannot serve as the basis for an ineffective assistance claim.” (Citation, punctuation and footnote omitted.) Jackson v. State, 306 Ga. App. 33, 39 (2) (c) (701 SE2d 481) (2010). Counsel’s reasoned explanation for his strategy here was not so unsound that no reasonable lawyer would have pursued it. Butler v. State, 292 Ga. 400, 405 (3) n. 8 (738 SE2d 74) (2013). And while counsel stated that he had planned to pursue this defense in closing, he did not, presumably because the trial court planned to instruct the jury that an accused may be convicted by proof that he violated a statute in either of the two ways indicted. Rather, counsel argued at closing that the State simply did not prove its case. Maurer has failed to make a showing that counsel performed deficiently. Moreover, if we were to assume that counsel was deficient, Maurer has not shown that there was some other viable defense that counsel should have presented. See, e.g., Harris v. Upton, 292 Ga. 491, 495 (2) (d) (739 SE2d 300) (2013) (defendant failed to show viable defense existed which counsel should have presented). He therefore has also failed to establish the prejudice prong of the Strickland test.

(h) Maurer asserts that trial counsel was ineffective in failing to object to the prosecutor’s closing argument. Specifically, Maurer complains that the prosecutor’s statement that “the [S]tate’s evidence is not rebutted. It’s not rebutted,” shifted the burden of proof to the defense. But the Supreme Court of Georgia has held that “[a] prosecutor may argue that the defendant has not rebutted or explained the State’s evidence.” Arrington v. State, 286 Ga. 335, 346 (16) (c) (687 SE2d 438) (2009).

Maurer also argues that the prosecutor vouched for the State’s theory of the case by arguing facts not in evidence and by referring to his own personal beliefs about Maurer’s guilt. The prosecutor stated: “And then when your witness gets called into court they’re reluctant to tell what they had told before and you have to rely on different ways of trying to get the evidence in and you try your best to get the truth before the jury as you believe it to be and you present your case.” While trial counsel was not asked about his failure to object to this particular statement, counsel testified that he did not typically object to closing argument because it would “draw the jury’s attention” to such statements. See, e.g., Braithwaite v. State, 275 Ga. 884, 885-886 (2) (b) (572 SE2d 612) (2002) (counsel not ineffective for strategically not objecting to improper closing argument). And, in any case,

Decided March 21, 2013.

Henrickson & Sereebutra, Aaron S. Henrickson, for appellant.

Dick Donovan, District Attorney, Thomas A. Cole, Assistant District Attorney, for appellee.

a prosecutor is granted wide latitude in the conduct of closing argument, the bounds of which are in the trial court’s discretion; within the scope of such latitude is the prosecutor’s ability to argue reasonable inferences from the evidence, including any that address the credibility of witnesses.

(Citation and punctuation omitted.) Scott v. State, 290 Ga. 883, 885 (2) (725 SE2d 305) (2012). We will therefore not second-guess counsel’s strategic decision not to object.

(i) Maurer contends that counsel was ineffective in failing to object at sentencing to certified copies of his prior convictions under an alias. But counsel testified at the hearing on the motion for new trial that he and Maurer had discussed the prior convictions and that he would have objected to them if he “had a good faith basis to believe that wasn’t [Maurer].” Under these circumstances, trial counsel’s decision not to object was not unreasonable and cannot provide a ground for ineffectiveness. See Morrison v. State, 278 Ga. 808, 809 (3) (607 SE2d 577) (2005) (no showing of ineffectiveness where counsel made strategic decision not to object to admission of prior conviction where counsel had no basis upon which to contest its validity); Lopez-Jimenez v. State, 317 Ga. App. 868, 871-872 (2) (b) (733 SE2d 42) (2012).

Judgment affirmed.

Doyle, P. J., and Andrews, P. J., concur.

       This Code section was effective until January 1, 2013.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       In a felony trial, on voir dire examination the jurors shall be asked: “Have you, for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused?”; “Have you any prejudice or bias resting on your mind either for or against the accused?”; “Is your mind perfectly impartial between the state and the accused?”

       The juror explained that he has “workjed] dosel/’ with an unnamed organization for a number of years that “works in this area and I believe it’s going to make me bias[ed] on the [Sjtate’s side.”