text:
    A14A2086.
    WYNO et al. v. LOWNDES COUNTY et al.
    (771 SE2d 207)
   McFADDEN, Judge.

Misty Wyno was attacked and killed by her neighbors’ dog. Her husband, Jason Wyno, acting individually and as administrator of Mrs. Wyno’s estate, brought this action against the dog’s owners and against several governmental defendants — Lowndes County and four individual county employees associated with the county’s animal control services — whom he alleged had failed to respond appropriately to earlier complaints about the dog. The trial court dismissed the action against the county and the employees for failure to state a claim, concluding that sovereign and official immunity or, alternatively, the Responsible Dog Ownership Law, OCGA § 4-8-20 et seq., barred the action against those defendants. The trial court did not dismiss the action against the dog’s owners, but he did enter a final judgment under OCGA § 9-11-54 (b) in favor of the governmental defendants, and Wyno filed a direct appeal.

As detailed below, we affirm the dismissal of the action against the county and its employees in their official capacities pursuant to the version of the Responsible Dog Ownership Law then in effect, former OCGA § 4-8-30 (2012). As to the action against the employees in their individual capacities, however, we cannot affirm. The employees are not entitled to dismissal on official immunity grounds at this stage of the proceedings. And as to the Responsible Dog Ownership Law, Wyno has argued both below and on appeal that the statute contravenes Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d), which governs the official immunity of employees sued in their individual capacities. Although the trial court implicitly rejected Wyno’s constitutional challenge, we cannot review that ruling because the trial court did not make it expressly. Accordingly, as to the employees in their individual capacities, we reverse the judgment and remand the case for the trial court to enter an express ruling on the constitutional challenge and for other proceedings consistent herewith.

1. Facts alleged in complaint and standard of review.

A motion to dismiss for failure to state a claim upon which relief may be granted

should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014) (citation omitted).

Construed in favor of Wyno, the complaint alleged that the neighbors’ dog attacked Mrs. Wyno on December 8, 2011, as she was returning to her residence from the neighbors’ home. Mrs. Wyno sustained fatal injuries. Previously, numerous complaints about dogs at the neighbors’ residence had been lodged with the county and the county’s animal control services. These included complaints that the dogs were unrestrained and “habitually loose,” that they growled and lunged at children and adults, that a dog chased some children, and that a dog bit a child in the face. Three of the individual defendants — animal control officers for the county — responded to these various complaints but took no action other than returning the dogs to their owners. In doing so, Wyno alleged, these animal control officers “negligently failed to perform ministerial duties under Georgia laws, county ordinances, internal policies, and other duties.” Wyno alleged that the other individual defendant — the director and manager of the county’s animal shelter and supervisor of the animal control officers — did not require the animal control officers to perform their duties, and that this individual and the county generally failed to adequately hire, train, and supervise the animal control officers. The failure of the county and its employees to take appropriate action in response to the complaints, alleged Wyno, was malicious and caused the attack against Mrs. Wyno and her death.

The trial court dismissed Wyno’s action against the county and the county employees for failure to state a claim. The trial court held that sovereign immunity barred the action against the county, official immunity barred the action against the county employees, and, alternatively, the Responsible Dog Ownership Law and particularly the provisions of former OCGA § 4-8-30 (2012) barred the action against all of the governmental defendants.

2 .Action against county and employees in their official capacities.

The trial court did not err in dismissing the action against the county and its employees in their official capacities, because former OCGA § 4-8-30 (2012) bars the action. The version of OCGA § 4-8-30 effective at the time of the attack in December 2011 provided:

It is the intent of the General Assembly that the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog. Under no circumstances shall a local government or any employee or official of a local government which enforces or fails to enforce the provisions of this article [regarding dangerous dog control] be held liable for any damages to any person who suffers an injury inflicted by a dog that has been identified as being a dangerous dog or potentially dangerous dog or by a dog that has been reported to the proper authorities as being a dangerous dog or potentially dangerous dog or by a dog that a local government has failed to identify as a dangerous dog or potentially dangerous dog or by a dog which has been identified as being a dangerous dog or potentially dangerous dog but has not been kept or restrained in the manner described in subsection (b) of Code Section 4-8-25 or by a dangerous dog or potentially dangerous dog whose owner has not maintained insurance coverage or a surety bond as required in subsection (c) of Code Section 4-8-25.

Former OCGA § 4-8-30 (2012).

Wyno argues that former OCGA § 4-8-30 (2012) does not bar his action because he bases his claims on the defendants’ failure to enforce a local dog control ordinance in addition to the state dog control statute. We disagree, however, with Wyno’s contention that “OCGA § 4-8-30, by its own terms, only applies to claims for ‘failing to enforce the provisions of this article,’ i.e. the state dangerous dog statute.” The express language of the Code section provides immunity to local governments and their employees and officials from liability for all injuries inflicted by dangerous or potentially dangerous dogs. Its reference to the enforcement of “this article” is used to describe the local governments, employees, and officials entitled to immunity; in other words, the Code section applies to those local governments, employees and officials “which enforce [ ] or fail[ ] to enforce the provisions of this article [the Code section’s provisions related to dangerous dog control].” Former OCGA § 4-8-30 (2012). We do not read that reference to limit immunity in cases that also involve local dog control ordinances, because the Code section contains no such limitation and to limit immunity would go against the General Assembly’s expressly stated intent “that the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog.” Former OCGA § 4-8-30 (2012) (emphasis supplied). See Early v. Early, 269 Ga. 415, 416 (499 SE2d 329) (1998) (“In construing a statute, the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.”) (citation and punctuation omitted).

Wyno purports to challenge the constitutionality of former OCGA § 4-8-30 (2012) as contravening Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d), which concerns the official immunity afforded to public employees in their individual capacities. See generally Austin, 294 Ga. at 774 & n. 2 (Georgia’s Constitution contains the doctrine of official immunity, which “provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority”) (citation omitted). That constitutional provision, however, does not apply to Wyno’s action against the county or its employees in their official capacities. See Harry v. Glynn County, 269 Ga. 503, 503 (1) (501 SE2d 196) (1998) (counties are entitled to sovereign immunity under Ga. Const. of 1983, Art. I, Sec. II, Par. IX); Wendelken v. JENK LLC, 291 Ga. App. 30, 32 (2) (661 SE2d 152) (2008) (public employees sued in their official capacities are entitled to sovereign immunity).

Because former OCGA § 4-8-30 (2012) bars the action against the county and its employees in their official capacities, we affirm the trial court’s dismissal of the action against them. Consequently, we need not address Wyno’s claims of error regarding the trial court’s alternative ground of dismissing the action on sovereign immunity.

3. Action against employees in their individual capacities.

(a) Official immunity.

The trial court erred in dismissing the action against the employees in their individual capacities based on official immunity. Among other things, Wyno alleged that the employees “negligently failed to perform ministerial duties under Georgia laws, county ordinances, [and] internal policies[,]” proximately causing Mrs. Wyno’s death. That allegation is sufficient to state a claim because,

[a] t this time, it cannot be said that the allegations of the complaint disclose with certainty that [Wyno] would not be entitled to relief under any state of provable facts asserted in support. For example, there conceivably could be evidence of some explicit detailed laundry list of discrete tasks each individual [animal control officer] was required to perform [when faced with a complaint about a dog]. At this stage in the litigation, it does not matter [whether or not] the existence of such a laundry list is unlikely. . . . This is factual evidence which may or may not be developed during discovery and can be considered on a subsequent motion for summary judgment. As the record stands, however, the trial court improperly granted the individual defendants’ motion to dismiss [on official immunity grounds].

Austin, 294 Ga. at 775 (citation omitted; emphasis in original).

(b) Responsible Dog Ownership Law.

The trial court also dismissed the action against the employees in their individual capacities based on the Responsible Dog Ownership Law, former OCGA § 4-8-30 (2012). Wyno argues, however, that former OCGA § 4-8-30 (2012) is inconsistent with Georgia’s constitutional provision that

Decided March 25, 2015

O. Wayne Ellerbee, for appellants.

William A. Turner, Jr., Elliott, Blackburn & Gooding, James L. Elliott, for appellees.

... all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. . . .

Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). Under Wyno’s rationale, to the extent former OCGA § 4-8-30 (2012) bars actions against the employees in their individual capacities that otherwise would be permitted by this constitutional provision, the statute is unconstitutional. Although Wyno raised this constitutional challenge in his response to the defendants’ motion to dismiss, the trial court did not specifically or directly pass on the constitutional issue in his order. Consequently, we cannot review that issue on appeal. See City of Decatur v. DeKalb County, 284 Ga. 434, 436-438 (1), (2) (668 SE2d 247) (2008).

Nevertheless, by applying former OCGA § 4-8-30 (2012) to dismiss the action against the employees in their individual capacities, the trial court implicitly rejected the constitutional challenge to the statute. We therefore reverse that part of the order dismissing the action against the employees in their individual capacities and remand this case to the trial court for that court to enter a ruling specifically and directly passing on the constitutional challenge and for further proceedings consistent therewith. See Stafford v. Bryan County, 312 Ga. App. 533, 534 (718 SE2d 832) (2011); Buchan v. Hobby, 288 Ga. App. 478, 480 (654 SE2d 444) (2007).

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

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

       The present version of the controlling language is at OCGA § 4-8-31.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A2312.
    BARROW v. MIKELL.
    (771 SE2d 211)
   Branch, Judge.

In April 2010, the Georgia Department of Driver Services (“DDS”) revoked appellant Abdou Barrow’s license. In June 2010 and November 2013, Barrow attempted to have his license reinstated, but DDS denied both of these requests. Within 30 days of the denial of his November 2013 application, Barrow appealed to the superior court, which dismissed the appeal as untimely. On appeal from that dismissal, Barrow argues that the trial court erred when it concluded that Barrow lost his right to appeal. We find no error and affirm.

The facts relevant to this appeal are not in dispute. Barrow, a Gambian citizen, entered the United States in 1992 and filed an application for asylum in 1997. In 1999, Barrow was ordered removed from the United States. Between 2000 and 2001, Barrow pled guilty to a number of traffic offenses in Georgia, including hit and run. As a result, his Georgia driver’s license was suspended in June 2000 and cancelled in December 2001.

Barrow was issued a new driver’s license on February 25, 2009. On April 9,2010, DDS revoked Barrow’s license for what DDS termed “fraud or fictitious use of license.” On April 27, 2010, Barrow applied to reinstate his license. As of that date, however, federal Immigration and Customs Enforcement (“ICE”) records showed that Barrow had a warrant of removal pending against him. On June 18, 2010, DDS notified Barrow that it was “unable to complete [the] processing” of his application for reinstatement because his legal presence in the United States could not be verified. In the same notification, DDS instructed Barrow to return with “all your official documents, including all valid immigration documents,” by July 13, 2010. Barrow did not do so, however, and did not appeal either the April 9 revocation or the June 18 denial of his application for reinstatement.

Almost three years later, in April 2013, Barrow learned that both his petition for asylum as well as federal removal proceedings against him had been revived. In August 2013, Barrow was apparently arrested for driving on a cancelled license. On November 13, 2013, Barrow applied at the Snellville DDS office to have his license reinstated. During that visit, a DDS worker confirmed that Barrow’s license had been “suspended” on April 9, 2010, and told Barrow that his application was denied. On November 25, 2013, DDS sent e-mails to Barrow’s counsel again confirming that it would not reinstate Barrow’s license because he was not lawfully present in the United States.

On December 2, 2013, Barrow appealed the DDS’s November 2013 refusal of reinstatement. The State moved to dismiss Barrow’s appeal as untimely under OCGA § 40-5-66, and the superior court granted the motion on that ground. Barrow then sought discretionary review of the superior court’s decision by the Supreme Court of Georgia, arguing that the case presented a novel constitutional question as to the process due to a person denied a state driver’s license as a result of a federal agency’s determination that the same person was not lawfully present in the United States. The Supreme Court transferred the case to this Court on grounds including that the trial court had ruled only on the timeliness of Barrow’s appeal and not on any constitutional question. We then granted Barrow’s application for discretionary review of the superior court’s decision.

The only question before us is thus whether Barrow’s appeal from the DDS to the superior court was timely. Barrow argues that the revival of his application for asylum in March 2013 gave him the right both to apply for the reinstatement of his license in November 2013 and to appeal any adverse decision on that application within 30 days. We do not agree.

OCGA § 40-5-66 creates a right of appeal from “any decision” of the DDS as follows:

(a) Except as provided in subsection (h) of Code Section 40-5-67.1 [concerning licenses suspended as a result of chemical and blood tests] and subsection (h) of Code Section 40-5-64 [concerning limited driving permits for certain offenders], any decision rendered by the department shall be final unless the aggrieved person shall desire an appeal. In such case, such person shall have the right to enter an appeal in the superior court of the county of his residence or in the Superior Court of Fulton County. Such appeal shall name the commissioner as defendant and must be filed within 30 days from the date the department enters its decision or order. The person filing the appeal shall not be required to post any bond nor to pay the costs in advance.
(b)... No person shall be allowed to operate any vehicle in violation of any suspension or revocation by the department while any such appeal is pending.

(Emphasis supplied.) To determine the meaning of the term “any decision” in OCGA § 40-5-66, we must

ascertain the legislature’s purpose in enacting [the] statute and then construe the statute to effect that purpose, avoiding interpretations that do not square with common sense and sound reasoning. Language in one part of the statute must be interpreted in light of the legislature’s intent as found in the whole statute. But if the statutory language is plain and unequivocal, then judicial construction is not only unnecessary but forbidden.

Ins. Dept. of the State of Ga. v. St. Paul Fire & Casualty Ins. Co., 253 Ga. App. 551, 552-553 (559 SE2d 754) (2002) (punctuation and footnotes omitted). “[T]he interpretation of a statute is a question of law, which is reviewed de novo on appeal. Because the trial court’s ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.” Hart v. State, 319 Ga. App. 749 (738 SE2d 331) (2013) (punctuation and footnote omitted).

Barrow asserts that because the statute grants him a right of appeal from “any decision” of the DDS concerning his license, OCGA § 40-5-66 (a), he has a right to appeal DDS’s November 2013 denial of his request to reinstate that license, even though the original revocation occurred in April 2010. We recognize that the statutory language as to “any decision” is very broad. However, in Earp v. Lynch, 257 Ga. 633 (362 SE2d 55) (1987), the Supreme Court of Georgia held that notwithstanding the later expungement of the same traffic offenses that had led to the revocation of a driver’s license, a driver who had failed to request reinstatement until approximately a year after the original revocation had waived his right to an appeal because “OCGA § 40-5-66 requires appeals to be made within thirty days of the revocation decision by the Department.” Id. at 634 (emphasis supplied). The instant case presents the same factual scenario. Although we recognize that Barrow did not have any grounds for appealing the initial revocation decision in 2010, we are constrained to affirm the trial court’s denial of his 2013 appeal (based on a change to his immigration status) as untimely under the rationale of Lynch, which binds this Court. 257 Ga. at 634.

Decided March 25, 2015

Justin W. Chaney, S. Anne Thompson, for appellant.

Samuel S. Olens, Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Amy M. Radley, Assistant Attorney General, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       See Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603, 604 (1) (478 SE2d 437) (1996) (Supreme Court of Georgia will not rule on a constitutional question “unless it clearly appears in the record that the trial court distinctly passed on the point”) (citation and punctuation omitted). Raskin v. Wallace, 215 Ga.App. 603, 604 (1) (451 SE2d 485) (1994) (where a trial court did not “distinctly pass or rule on” a constitutional issue, an assertion as to it on appeal “presents nothing for review by any appellate court”) (citation and punctuation omitted).

       See, e.g., OCGA § 40-5-21.1 (a) (“an applicant who presents in person valid documentary evidence of... (2) [a] pending or approved application for asylum in the United States ... may be issued a temporary license, permit, or special identification card.”).

       The statute’s language as to “any decision” was maintained throughout amendments made since 1987. See Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2564, § 4.

       Although the Lynch Court cited Earp v. Angel, 257 Ga. 333 (357 SE2d 596) (1987), as controlling authority, the Angel appellant neither appealed his initial revocation nor applied to the DDS for reconsideration of that revocation; instead, he went directly to the habeas court for relief. Id. at 334. Nonetheless, Lynch concluded that the facts before it were sufficiently “similar to the facts in Angel” such that “our decision in that case controls here.” 257 Ga. at 634 (reversing grant of habeas relief).


author: MCFADDEN, Judge.

text:
    A14A1614.
    GRIFFIN v. THE STATE.
    (769 SE2d 514)
   MCFADDEN, Judge.

After a jury trial, Patrick Griffin was convicted of cocaine trafficking and possession of marijuana with intent to distribute. He appeals, raising six claims of ineffective assistance of counsel and four other enumerations of error.

He argues that trial counsel rendered ineffective assistance by failing to object to a question about Griffin’s invocation of his right to counsel and his right to remain silent; by failing to object when lab reports, evidence labels, and evidence tags listing his name went out with the jury; by allowing an imperfectly redacted search warrant and affidavit to go out with the jury; by failing to show that a woman, not Griffin, was the lessee of the apartment in which the contraband was found; by failing to object to a jury charge on the presumption of possession; and by failing to request a jury charge on sole constructive possession. None of these claims of ineffective assistance of trial counsel has merit.

Griffin also argues that the trial court expressed an opinion on a witness’s credibility in violation of OCGA § 17-8-57. But the trial court’s comments were part of a brief, friendly exchange that did not express an opinion on the witness’s credibility. Griffin argues that the trial court erred by excluding references to two co-defendants’ earlier acquittals. But Griffin was not entitled to present evidence of the acquittals. Griffin argues that the trial court wrongly excluded certain relevant evidence and wrongly included certain irrelevant evidence, but he has not shown an abuse of discretion. Finally, contrary to Griffin’s argument, circumstantial evidence was sufficient to show that he knowingly possessed more than 28 grams of cocaine, and the evidence generally supports the convictions. We therefore affirm.

1. Sufficiency of the evidence.

Although it is Griffin’s final argument, we begin with the sufficiency of the evidence. On appeal from a criminal conviction,

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

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted). Viewed in this light, the evidence shows that on January 13, 2011, officers executed a search warrant at an apartment in Clayton County. Griffin and at least ten other people were inside the apartment. The officers found cocaine, marijuana, large sums of cash, digital scales, drug distribution paraphernalia, and guns throughout the apartment. Cocaine was being cooked into crack on the stove top. Abale of marijuana was in the open pantry. Officers found $4,335 on Griffin. In total, close to $30,000 in cash was found on the men who were present in the apartment. A co-defendant testified that, shortly before the police executed the warrant, Griffin asked someone to go buy some batteries, ostensibly for one of the digital scales, and Griffin provided the funds for the batteries.

A chemist with the Georgia Bureau of Investigation testified about the results of her testing of several of the multiple bags of contraband seized from the apartment, including one bag that contained a chunky, solid material that was 24.7 percent pure cocaine and weighed 61.45 grams and several bags of a powdered material that was 49.4 percent pure cocaine and together weighed 235.83 grams.

The state presented as similar transaction evidence Griffin’s prior convictions for cocaine possession and marijuana possession. The state also admitted a statement Griffin made in connection with an incident in which he was not charged. Griffin admitted driving another person to a location where that person was intending to sell cocaine and watching that person weigh the cocaine in the back seat of his car.

Griffin’s defense was that he was merely at the apartment to attend a party. But evidence, including Griffin’s distinctively large clothing scattered in one of the bedrooms, a photograph of Griffin and his girlfriend found in that bedroom, and Griffin’s admission that he “stayed” at that apartment with his girlfriend, linked Griffin to the apartment.

At the time of the crimes in 2011 and Griffin’s trial June 11-15, 2012, former OCGA § 16-13-31 (a) (1) provided, in relevant part:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine.

(The statute has since been amended to delete the word “knowingly.” See Scott v. State, 295 Ga. 39, 40-41 (1), (2) & n. 1 (757 SE2d 106) (2014).) OCGA § 16-13-30 (j) (1) provides, “[i]t shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” The evidence described above supports the jury’s determination that Griffin committed the offenses of cocaine trafficking and possession of marijuana with intent to distribute.

Griffin argues that there was insufficient evidence that he had knowledge of the weight of the cocaine. See Scott, 295 Ga. at 42 (3). But such knowledge may be proved by circumstantial evidence. Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631) (2014).

Because the trafficking conviction in this case is based on the possession of a cocaine mixture that weighed far more than 28 grams, and because the evidence was overwhelming that [Griffin] had enough experience handling cocaine to know that the cocaine . . . which, the jury evidently believed, was in his possession — weighed more than 28 grams,

the evidence was sufficient to establish that Griffin knew the weight of the cocaine in his possession exceeded 28 grams. Harrison v. State, 309 Ga. App. 454, 459 (2) (b) (711 SE2d 35) (2011).

2. Griffin received effective assistance of counsel.

Griffin argues that he received ineffective assistance of counsel in six regards. To prevail on his claim of ineffective assistance of counsel, Griffin must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If he “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114(7) (686 SE2d 863) (2009) (citation omitted). We “give[ ] deference to the trial court’s factual findings, which are to be upheld unless clearly erroneous, and examine[ ] the lower court’s legal conclusions de novo.” Dulcio v. State, 292 Ga. 645, 650 (3) (740 SE2d 574) (2013).

(a) State’s question to a detective.

Griffin argues that counsel rendered deficient performance during the state’s examination of one of the detectives. The detective testified that after he read Griffin his Miranda rights, he questioned Griffin about where he lived, and they briefly discussed the investigation. The assistant district attorney next asked, “And then at that point in time did the defendant then request for an attorney and not wish to talk to you any further?” The detective responded, “Yes.”

Griffin argues that trial counsel rendered deficient performance by failing to object to this question, which, he contends, impermissibly commented on his invocation of his right to counsel and his right to remain silent. To its credit, the state concedes that the question was improper and objectionable. But not all references to a defendant’s invoking his right to remain silent require reversal: “In fact, to reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.” Taylor v. State, 272 Ga. 559, 561 (2) (d) (532 SE2d 395) (2000) (citation and punctuation omitted).

Here the state’s question and the witness’s answer did not “point directly at the substance of” Griffin’s defense that he was at the apartment for a party. And the reference could not have “otherwise substantially prejudiced” Griffin in the eyes of the jury. The state’s violation consisted of only a single reference to Griffin’s invocation of his rights and the reference was isolated. See Qureshi v. State, 291 Ga. App. 708, 710 (662 SE2d 806) (2008). The assistant district attorney did not comment on Griffin’s invocation of his rights in closing argument. Id. “[I]t appears that [the reference] was not intended to reflect on [Griffin’s] guilt and it was not probative on that issue. Thus, the remark was not so fundamentally unfair as to deny him due process.” Hardy v. State, 301 Ga. App. 115, 116 (2) (686 SE2d 789) (2009) (citations and punctuation omitted).

And counsel had a reasonable explanation for his failure to object. At the motion for new trial hearing, counsel explained:

Sometimes during the course of a trial when a question has been asked and the witness has already answered it, it does more harm than good to jump up and draw more, it does more harm than good to jump up and draw attention to a question that really didn’t hurt your client to begin with.

Griffin has not shown that trial counsel’s failure to object was deficient assistance of counsel. Taylor, supra, 272 Ga. at 562 (2) (d). See also Martin v. State, 290 Ga. 901, 902-903 (1) (a) (725 SE2d 313) (2012) (trial counsel was not ineffective for failing to redact portion of videotaped statement where defendant invoked his right to counsel because videotape merely showed that defendant invoked his right to an attorney after giving a lengthy statement to police, and that the interview was then properly terminated, and did not purport to be evidence of his guilt nor was it directed to undermining any of his defenses).

(b) Evidence labeled with Griffin’s name.

Griffin argues that trial counsel was ineffective because he allowed evidence labeled with his name to be sent out with the jury. Specifically, he points to four evidence bags: one in which digital scales were sealed, one in which 14 bags of suspected powdered cocaine were sealed, one in which plastic bags of crack cocaine were sealed, and one in which four cell phones were sealed. Listed on the front of each bag were the notations, “Offense: VGCSA 16 13 30,” or “Offense: VGCSA,” and “Suspect: Griffin, Patrick.” Griffin also points to an evidence tag that was attached to state’s exhibit 28, a handgun. That tag included the notation: “POSSESSOR INFORMATION: LAST NAME Griffin FIRST NAME Patrick.” Griffin points to a Georgia Bureau of Investigations lab report that identified cocaine seized from the scene and listed Griffin as one of four “Case Individual Subjects.” He also points to a Clayton County Police Department report that identified marijuana seized from the scene and listed Griffin as one of eight defendants. (He also mentions an evidence bag in which 163 tablets of MDMA were sealed and which listed Griffin’s name as one of four suspects, but he does not indicate where the MDMA was admitted or went out with the jury, and an evidence tag attached to another handgun that stated, “Stolen out of Henry Co Police” but did not even list his name.)

At the motion for new trial hearing, trial counsel testified that he did not recall that the bags and tags went out with the jury. And the judge believed that they did not go out with the jury. Nonetheless, in the order denying Griffin’s motion for new trial, the trial court did not make a finding of fact on this issue. Therefore, for purposes of this appeal, we will assume that the evidence hags, tags and labels did go out with the jury. Even so, Griffin has not shown that trial counsel was ineffective for failing to object because listing his name was not prejudicial, and the cases he cites in support are distinguishable.

The information that went out with the juries in the cases cited by Griffin was highly prejudicial — unlike the mere listing of Griffin’s name as a suspect or defendant on the bags, tags and reports at issue. In Morris v. State, 161 Ga. App. 141, 142 (1) (288 SE2d 102) (1982), we reversed Morris’s drug convictions, holding that “it was erroneous for the trial court to allow to go to the jury room a tag which read ‘residence of L. D. Morris’ and was affixed by a police officer to a set of scales discovered in [an] apartment,” given that whether Morris resided there was a hotly disputed issue of fact. We held that “[t]he tag embodied a conclusion which was solely within the jury’s province to make, and its presence within the jury room constituted reversible error.” Id.

In Spence v. State, 96 Ga. App. 19 (99 SE2d 309) (1957), the defendant was convicted of driving under the influence of intoxicants. We reversed his conviction, holding that allowing the defendant’s arrest ticket to go out with the jury was prejudicial error, given that it “contained] the statement: ‘Check, found as checked, admits drinking quart of beer.’ ” Id. at 21 (3). See also Jinks v. State, 229 Ga. App. 18, 19-20 (2) (493 SE2d 214) (1997) (marijuana possession conviction reversed where trial court admitted fingerprint card that was unredacted and listed defendant’s name and, under the heading “Charge,” stated “Driving Under Influence” and “Too Fast For Conditions”).

In contrast, the listing of Griffin’s name as a suspect or defendant on the evidence bags, tags, and reports “hardly amounted to written testimony that could work any prejudice against [Griffin].” Brown v. State, 195 Ga. App. 389, 390 (393 SE2d 514) (1990). See also Stokes v. State, 206 Ga. App. 781 (2) (426 SE2d 573) (1992) (trial court did not err by admitting into evidence bag containing contraband to which tags were attached bearing defendants’ names). Obviously, the jury knew that Griffin was a suspect and a defendant, given that he was currently on trial. Consequently, trial counsel was not ineffective in this regard.

And to the extent that Griffin challenges listing him as the “possessor” of the handgun, given that he was charged with possession of a firearm as a convicted felon, any error was harmless as the jury returned a not guilty verdict on this charge.

(c) Griffin has not shown that trial counsel allowed an imperfectly redacted search warrant and affidavit to go out with the jury.

Griffin argues that counsel was ineffective for allowing an imperfectly redacted search warrant and affidavit to go out with the jury in violation of the continuing witness rule. But trial counsel testified that the imperfect redaction was corrected, so that Griffin’s name was no longer visible, the trial court found that only a redacted search warrant went out with the jury, and Griffin has not shown that the trial court’s factual finding is clearly erroneous. Consequently, this claim lacks merit.

(d) Trial counsel was not ineffective for failing to show that a woman, not Griffin, was the lessee of the apartment in which the contraband was found.

Griffin argues that trial counsel was ineffective for failing to pursue and present to the jury the identity of the lessee of the apartment. However, trial counsel’s trial strategy for failing to pursue this issue was reasonable. At the motion for new trial hearing, trial counsel testified that he did not pursue the issue because their theory of the case was that Griffin was simply at the apartment to attend a party. Consequently, the identity of the lessee was irrelevant. Moreover, counsel testified, there was some evidence that Griffin lived at the apartment. Trial counsel’s strategic decision did not amount to ineffective assistance of counsel. Copeland v. State, 327 Ga. App. 520, 528-529 (3) (b) (759 SE2d 593) (2014).

(e) Trial counsel was not ineffective for failing to object to the presumption of possession jury charge.

Griffin argues that trial counsel was ineffective for failing to object to the presumption of possession jury charge because such a presumption is limited to owners and tenants of property and Griffin was neither an owner nor a tenant. On the contrary, “[u]nder Georgia law, a presumption of possession and control arises when the defendant owns or resides in the premises.” Kirchner v. State, 322 Ga. App. 275, 282 (1) (c) (744 SE2d 802) (2013) (citations omitted; emphasis supplied). The state presented some evidence that Griffin resided at the apartment. Consequently, Griffin has not shown that counsel was ineffective for failing to object to this jury charge on this ground.

(f) Trial counsel was not ineffective for failing to request a charge on sole constructive possession.

Griffin argues that trial counsel should have requested a jury charge to the effect that the state was required to prove that Griffin was in sole constructive possession of the contraband, given that not all of those arrested with Griffin were indicted. He relies on cases in which we have held that when more than one occupant has equal access to contraband, but only one occupant is prosecuted for possession of the contraband, the state has the burden of proving that the prosecuted occupant was in sole constructive possession of the contraband. See, e.g., Benitez v. State, 295 Ga. App. 658, 660 (673 SE2d 46) (2009), overruled in part by Maddox v. State, 322 Ga. App. 811, 814-816 (2) (746 SE2d 280) (2013); Turner v. State, 276 Ga. App. 381, 383-384 (623 SE2d 216) (2005), overruled in part by Maddox, supra; Warren v. State, 254 Ga. App. 52, 54 (561 SE2d 190) (2002), overruled in part by Maddox, supra.

But in Maddox, 322 Ga. App. at 814-816 (2), we ruled that there was no reasonable basis for such a holding and overruled in part those cases restating that holding. Accordingly, we rejected Maddox’s argument that the trial court erred by refusing to instruct the jury on the state’s burden to prove sole constructive possession.

Although Maddox was decided after Griffin’s 2012 trial, its holding applies to Griffin’s case. See Lewis v. State, 291 Ga. 273, 278 (4) (731 SE2d 51) (2012). As Griffin was not entitled to a jury charge on sole constructive possession, he cannot show that counsel’s failure to request such a charge was ineffective assistance. See McClure v. Kemp, 285 Ga. 801, 803 (684 SE2d 255) (2009).

3. The trial court did not improperly express an opinion on the credibility of a witness.

Griffin argues that the trial courtjudge violated OCGA § 17-8-57 by expressing a favorable opinion about the credibility of a state’s witness, Kenneth Chappell, a crime scene investigator. OCGA § 17-8-57 prohibits “any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” “[A]ny violation of OCGA § 17-8-57 requires a new trial regardless of whether there has been any showing of actual prejudice to the defendant” or whether the defendant objected. Rouse v. State, 296 Ga. 213, 214-215 (2) (765 SE2d 879) (2014). We conclude, however, that the colloquy at issue was permissible: it was a “brief, friendly exchange” that “did not rise to the level of advocacy or imply the court’s approval of the investigator’s testimony” — notwithstanding that it “did seem to suggest approval of this investigator.” See Jordan v. State, 259 Ga. App. 551, 552 (578 SE2d 217) (2003), overruled in part on other grounds by Patel v. State, 282 Ga. 412 (651 SE2d 55) (2007).

The trial court made the comments in question after Chappell completed his testimony. After the court informed Chappell that he was excused, the following transpired:

CHAPPELL: Thank you, Your Honor. Thank you, jury, for your time and attention.
THE COURT: The state may call their next witness.
THE ASSISTANT DISTRICT ATTORNEY: Thank you, Judge.
The state would call Detective Williams.
THE COURT: All right. To my knowledge Mr. Chappell is not running for elective office. Maybe he should.
CHAPPELL: Your Honor, I’ve learned one thing, what sustained means.
THE COURT: Just keep coming back, just keep coming back.

Detective Williams was called as a witness.

THE COURT: Come on up, please, sir, if you would, to the seat to my right. Good afternoon.
WILLIAMS: How you doing?
THE COURT: Good. You have a hard act to follow, I’m just warning you.

Both this court and our Supreme Court have held that such brief, friendly exchanges between courts and witnesses do not impermissibly comment on a witness’s credibility. For example, in Watson v. State, 278 Ga. 763, 769-770 (5) (604 SE2d 804) (2004), the Supreme Court ruled that the jury would not have interpreted as a comment on the witness’s credibility a remark made by the trial court that “simply... follow [ed] up on the humor that the entire courtroom felt” when an animal behaviorist testified as an expert witness on cat scratches. Similarly, in O’Hara v. State, 241 Ga. App. 855, 859-860 (3) (528 SE2d 296) (2000), we found no violation where, in a “brief, friendly” exchange, the trial court told a testifying police officer, “I’ve told you, you can’t [retire] unless I [do].” In Jordan, supra, 259 Ga. App. at 552, 553, we found no violation from the trial court’s “brief, friendly remarks” at the conclusion of an investigator’s testimony “that the judge was ‘mad’ at her for not taking a job offered by the judge some years earlier and that she now had a better job than what the judge had offered her.” Compare Jones v. State, 189 Ga. App. 232, 232-234 (1) (375 SE2d 648) (1988) (comment “I don’t believe this witness is biased” clearly violated OCGA § 17-8-57).

We therefore conclude that the exchange at issue here did not amount to a comment on Chappell’s credibility and consequently that the trial court’s comments did not violate OCGA § 17-8-57. We note however, as we did in Jordan and O’Hara, that “[s]uch personal remarks by a court should be avoided to prevent even the slightest intimation of partiality.” Jordan, supra, 259 Ga. App. at 552 (citation and punctuation omitted); O’Hara, supra, 241 Ga. App. at 859 (3).

4. The trial court did not err by excluding references to two co-defendants’ acquittals.

Relying primarily on White v. State, 257 Ga. 236 (356 SE2d 875) (1987), Griffin argues that the trial court erred by refusing to admit as evidence the fact that two co-defendants had been acquitted at an earlier trial. But this case is controlled by one in which our Supreme Court distinguished White:

In White, [our Supreme] Court held that one charged distinctly as an accessory to a crime may be entitled under Georgia law to present evidence of the acquittal of another charged distinctly as the principal.... Unlike White, it was not essential in the case against [Griffin] for the [s]tate to prove that [the co-defendants] also [were] guilty. In the indictment, [Griffin] was not charged distinctly as having aided or abetted [the co-defendants] in the commission of the [crimes] [.]

Davis v. State, 296 Ga. 126, 127-128 (2) (765 SE2d 336) (2014) (footnotes omitted). Accordingly, Griffin was not entitled to present this evidence.

5. Griffin has not shown the trial court abused her discretion in evidentiary rulings.

Griffin challenges two of the trial court’s relevancy-based evidentiary rulings. Griffin argues that the trial court abused her discretion in allowing an officer to explain no-knock warrants because the matter was irrelevant. But Griffin was arrested pursuant to the execution of a no-knock warrant. And “all the circumstances attending his arrest, [were] admissible to be considered by the trier of fact for what they [were] worth.” Blake v. State, 272 Ga. App. 181, 182 (2) (612 SE2d 33) (2005) (citation and punctuation omitted).

Griffin next argues that the trial court erred by refusing to allow him to question a witness about a relevant matter during re-cross-examination. The witness had been indicted with the others but was granted immunity for testifying. The witness testified that she had been at the apartment ten minutes when the police arrived. Defense counsel asked her, “What was your purpose for going there?” The trial court sustained an objection to the question on relevancy grounds. Counsel did not make a proffer of what he expected the witness to answer. Nor did he make any response other than to state that he believed the question was relevant.

Decided February 12, 2015

Reconsideration denied March 26, 2015

John W. Kraus, for appellant.

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

“Although a defendant is entitled to a thorough and sifting cross-examination as to all relevant issues, the trial court, in determining the scope of relevant cross-examination, has a broad discretion.” Johnson v. State, 270 Ga. 234, 235 (2) (507 SE2d 737) (1998). Here, Griffin “failed to make any response or proffer to the [s]tate’s relevancy objection to the evidence at trial.” Ogletree v. State, 211 Ga. App. 845, 847 (3) (440 SE2d 732) (1994). Griffin has not shown that the trial court abused her broad discretion.

Judgment affirmed.

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


author: McFadden, Judge.

text:
    A14A1641.
    PAUL v. THE STATE.
    (769 SE2d 396)
   McFadden, Judge.

Jernerick Paul appeals from his burglary conviction. He challenges the sufficiency of the evidence, the admission of certain evidence found during his arrest, the effectiveness of his trial counsel and the lack of a jury charge on the defense of mistake of fact. Because there is enough evidence to support the verdict, the trial court properly admitted evidence of items as a circumstance of the arrest, Paul was not prejudiced by his counsel’s performance, and he claimed a mistake of law rather than a mistake of fact, the challenges are without merit and we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.

Stillwell v. State, 329 Ga. App. 108 (764 SE2d 419) (2014) (citation omitted).

So viewed, the evidence shows that at 5:00 a.m. on January 19, 2011, Paul entered the apartment of the victims. One of the victims came out of a bedroom to find Paul standing in the living room. Paul said that the cat had let him in, and he then left the apartment. The victim noticed that his wallet had been moved and discovered that a one-dollar bill was missing from it. The victims called the police, who arrived at the scene within a few minutes and found Paul in the apartment complex parking lot. The victims identified Paul as the man who had entered their apartment. Paul consented to a search of his person and backpack, and police found a one-dollar bill in one of his pockets and various items in the backpack, including several cell phones and cameras. The state also introduced evidence of Paul’s two prior burglary convictions.

The version of OCGA § 16-7-1 (a) applicable to this case provides that a “person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another [.j” Paul argues that there was insufficient evidence of his intent to commit a theft inside the apartment because he testified that he thought the apartment was vacant and that he could rest there. However, unauthorized entry into a vacant dwelling house of another may still constitute burglary. See Earnest v. State, 216 Ga. App. 271, 272 (1) (453 SE2d 818) (1995) (sufficient evidence of burglary even though house vacant and no one resided there at time of entry, noting that there is no requirement in the law that a house be continuously occupied in order to be a dwelling). Moreover, the jury was not bound by Paul’s testimony and was free to reject it since his credibility, like that of the other witnesses, was a matter solely within the jury’s province. Lewis v. State, 283 Ga. 191, 192 (1) (657 SE2d 854) (2008); O’Rourke v. State, 327 Ga. App. 628, 631 (1) (760 SE2d 636) (2014). Indeed, “[a] jury may reject a defendant’s explanation for his unauthorized entry where that explanation is inconsistent with other direct and circumstantial evidence.” Long v. State, 307 Ga. App. 669, 671 (1) (705 SE2d 889) (2011) (citation omitted). “Having reviewed all the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence for the jury to find [Paul] guilty beyond a reasonable doubt of burglary.” Murray v. State, 328 Ga. App. 192, 193 (1) (761 SE2d 590) (2014) (citations and punctuation omitted).

2. Motion in limine.

Paul contends that the trial court erred in denying his motion in limine to exclude evidence of the items found in his backpack at the time of his arrest. The contention is without merit.

In general, all of the circumstances connected with a defendant’s arrest are considered proper evidence to be submitted to the jury to be weighed by it for what they are worth. Articles found in the control of the defendant at the time of his arrest are admissible as circumstances connected with the arrest. Police found the [items in Paul’s backpack] after obtaining his consent to search when they arrested him for [burglary] shortly after [the victims] called police. The evidence was properly admitted as part of the circumstances connected with his [burglary] arrest.

Blackwell v. State, 274 Ga. App. 579, 580 (618 SE2d 190) (2005) (citations and punctuation omitted).

Paul further argues that the state improperly impugned his character by arguing that the backpack items were evidence of uncharged crimes. He cites to a portion of the state’s closing argument, during which the prosecutor questioned inconsistencies in the evidence and Paul’s testimony that he owned the items. Paul objected at one point during that argument, but on different grounds: stating facts not in evidence. The trial court effectively sustained the objection by responding “[a] 11 right” and then instructing the jury to determine what the evidence is and to ignore any argument not based on the evidence. Paul did not request further instruction or any other ruling by the trial court, and he never objected on the ground that the state was improperly impugning his character based on uncharged crimes.

“Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” Godfrey v. State, 227 Ga. App. 576, 577 (2) (489 SE2d 364) (1997) (citation and punctuation omitted). Moreover, even if Paul had presented the same grounds for objection on appeal as that ruled on by the trial court during the state’s closing argument, “any issue concerning the propriety of the prosecutor’s comments has been waived. If the trial court’s curative action in sustaining the objection [and instructing the jury] was insufficient, defense counsel should have sought additional relief.” Walley v. State, 298 Ga. App. 483, 485 (2) (680 SE2d 550) (2009) (citation and punctuation omitted). See also Fennell v. State, 271 Ga. App. 797, 798 (1) (611 SE2d 96) (2005) (sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike, or denied request for curative instructions).

3. Ineffective assistance of counsel claim.

Paul claims that his trial counsel was ineffective in failing to introduce bills and receipts that purportedly would have supported his testimony that he owned the cell phones found in his backpack. We disagree.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

Patel v. State, 279 Ga. 750, 751 (620 SE2d 343) (2005) (citations and punctuation omitted). Here, even presuming deficient performance, Paul cannot show prejudice. The evidence of Paul’s guilt was overwhelming, including the victim’s eyewitness encounter with Paul inside his apartment, Paul’s admission that he made an unauthorized entry into the apartment, the discovery of money exactly like that stolen from the victim’s wallet inside Paul’s pocket, and the evidence of Paul’s two prior burglary convictions.

Given such overwhelming evidence of guilt, there is no reasonable probability that the outcome of the trial would have been different if counsel had introduced bills and receipts of cell phones that were not the subject of the crime charged. “[Accordingly, ineffective assistance of trial counsel has not been shown on this basis.” Chavez v. State, 329 Ga. App. 207, 210 (1) (764 SE2d 447) (2014) (finding that regardless of counsel’s deficiency, no prejudice to defendant in view of overwhelming evidence of guilt). See also Durden v. State, 293 Ga. 89, 99 (6) (b) (744 SE2d 9) (2013) (no reasonable probability of different outcome at trial given overwhelming evidence of defendant’s guilt).

4. Mistake of fact charge.

Paul argues that the trial court erred in failing to charge the jury sua sponte on the defense of mistake of fact. The argument is without merit.

“Mistake of fact represents an affirmative defense, under which a person shall not be found guilty of a crime if the act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” Stillwell, supra at 109 (1) (citation and punctuation omitted). Here, Paul claims that he mistakenly thought the apartment was vacant and thus he was authorized to enter it. This, however, was a mistake of law, not fact; as noted above in Division 1, a person is not authorized to enter the dwelling of another merely because it is vacant and such unauthorized entry may still constitute burglary. Earnest, supra. “We have consistently held that failure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law. It is axiomatic that everyone is presumed to know the law and ignorance thereof is not an excuse for its violation.” Stillwell, supra at 110 (1) (citations and punctuation omitted). Because Paul’s “defense was based on mistake of law rather than mistake of fact, the trial court did not err in failing to charge mistake of fact.” Id.

Decided March 6, 2015

Reconsideration denied March 26, 2015.

Michael W. Tarleton, James C. Bonner, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Peggy R. Katz, Arthur C. Walton, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., concurs. Ray, J., concurs fully in Divisions 1, 2, and 4, and in judgment only in Division 3.

       OCGA § 16-7-1 was amended, effective July 1,2012. The amended version of the statute applies to offenses occurring on or after that date. Because Paul’s burglary offense and trial occurred in 2011, the prior version of the statute applies to this case.


text:
    A14A1944.
    BROOM v. THE STATE.
    (769 SE2d 400)
   McFadden, Judge.

After a jury trial, Randall Jerome Broom was convicted of aggravated assault with a knife (OCGA § 16-5-21) and theft by shoplifting (OCGA § 16-8-14). Broom received a recidivist sentence. On appeal, he challenges the sufficiency of the evidence supporting his aggravated assault conviction, but we find the evidence sufficient. He also argues that his trial counsel was ineffective for failing to inform him of a plea offer, including the offer’s expiration date. The evidence, however, supports a finding that trial counsel timely informed Broom of the offer and there is no evidence to show that he would have accepted the offer had he known its expiration date. Accordingly, we affirm.

1. Sufficiency of the evidence.

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 July 26, 2009, Broom entered a store, removed a watch from its packaging, placed it on his wrist, put his hand in his pocket, and left the store without paying for the watch. A store loss prevention officer witnessed Broom take the watch. He and a store manager confronted Broom outside the store and asked Broom to give them the watch and accompany them back inside. As the three walked into the store, Broom suddenly broke away and began to flee. He tripped and fell into a shopping cart, got back up, swung a knife at the loss prevention officer and the store manager, threatened to cut them, and then ran. Broom was apprehended outside the store.

At trial, Broom admitted to taking the watch but testified that he had a cell phone rather than a knife in his hand. He argues that because the evidence conflicted about what he was holding it was insufficient to convict him of aggravated assault. But the loss prevention officer and the store manager positively testified that Broom had a knife. “It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence.” Stills v. State, 327 Ga. App. 767, 768 (761 SE2d 159) (2014) (citation omitted).

2. Effectiveness of trial counsel.

Broom argues that his trial counsel was ineffective in failing to adequately inform him about a plea offer, including the date the offer expired. To prevail on this claim, Broom must show both deficient performance by trial counsel and actual prejudice. Francis v. State, 296 Ga. 190, 197-198 (4) (766 SE2d 52) (2014). On appellate review, “[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.” Id. at 198 (4) (citation and punctuation omitted).

Conflicting evidence was presented at the hearing on Broom’s motion for new trial regarding whether trial counsel informed Broom of a plea offer before the offer expired. Trial counsel testified that he spoke with Broom about the offer at the calendar call, which was the day the offer expired. Trial counsel also testified that he discussed Broom’s recidivist status with him. In contrast, Broom testified that he was not present at the calendar call and that trial counsel did not inform him of the offer until the day of trial, after the offer had expired. “In [his] role as factfinder, the trial court was authorized to believe the testimony of trial counsel [that he timely informed Broom of the plea offer] and reject any conflicting testimony from [Broom].” Butler v. State, 319 Ga. App. 350, 353 (734 SE2d 567) (2012) (citation omitted).

Decided March 6, 2015

Reconsideration denied March 26, 2015

Robert C. Rutledge, for appellant.

Herbert E. Franklin, Jr., District Attorney, Leanna S. Granillo, Assistant District Attorney, for appellee.

As Broom points out, trial counsel testified that he does not recall telling Broom the plea offer was about to expire. Assuming without deciding that trial counsel’s failure to convey the offer’s expiration date was deficient performance, Broom has not shown prejudice. To show prejudice

[i]n the context of the plea bargain process, the defendant must demonstrate that, but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the [s]tate’s plea offer. The requisite reasonable probability standard demands a showing that there is some indication that the defendant was amenable to the offer made by the state.

Johnson v. State, 289 Ga. 532, 535 (712 SE2d 811) (2011) (citations and punctuation omitted). Broom offered no evidence that, had trial counsel told him the offer’s expiration date, there was a reasonable probability he would have accepted the offer. Broom testified only that had he known of the offer at all he would have accepted it, testimony that the trial court was authorized to discount in light of the evidence, discussed above, that Broom had been informed of the plea offer before it expired and had rejected it.

Accordingly, Broom has not met his burden of showing that he received ineffective assistance of counsel in connection with the plea offer.

Judgment affirmed.

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


text:
    A14A2293.
    HOWER v. THE STATE.
    (769 SE2d 402)
   MCFADDEN, Judge.

Jontae Hower appeals the denial of his motion to withdraw his guilty plea. He argues that he did not enter his plea freely and voluntarily, but the trial court found otherwise, and Hower has not shown error. Hower argues that his right to be present was violated when the state and his attorney engaged in plea negotiations outside of his presence. The plea negotiation here, however, was not a critical phase of the trial at which Hower had the right to be present. We therefore affirm the trial court’s denial of Hower’s motion.

Hower was charged with aggravated child molestation but entered a guilty plea to the lesser included offense of child molestation. He was sentenced to 20 years, to serve 12 years in custody with the balance on probation. Hower filed a timely motion to withdraw his plea. The trial court denied the motion, and Hower filed this appeal.

1. The record supports the trial court’s finding that Hower entered his plea freely and voluntarily.

Hower argues that his plea was not free and voluntary because counsel told him he would be found guilty if he went to trial; he was not told that he would be required to register as a sex offender; and he was not told that he would spend the remainder of his life on probation.

The trial court did not err by rejecting these arguments.

A guilty plea is valid if the record shows that

the defendant understands the plea and the constitutional rights that he is relinquishing. Boykin v. Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969). The [s]tate has the burden on direct review of establishing that the plea was entered intelligently and voluntarily. The [s]tate may meet this burden by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary. After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court’s discretion and withdrawal of the plea is allowed only when necessary to correct a manifest injustice.

DeToma v. State, 296 Ga. 90, 91 (1) (765 SE2d 596) (2014) (citations and punctuation omitted).

Hower argues that his plea was coerced by fear. He testified at the hearing on his motion to withdraw his plea that his trial counsel told him that if he did not take the plea, he would receive 25 years in prison. Trial counsel disputed this, testifying that she did not tell Hower that he would be found guilty, that he would receive 25 years to serve, or that there was nothing that she could do to prove his innocence. Moreover, at the guilty plea hearing, Hower testified that no threats or promises had been made to influence him to plead guilty. The trial court “was authorized to reject [Hower’s] version of the facts and credit instead the testimony of his counsel.” Stinson v. State, 286 Ga. 499, 501 (2) (689 SE2d 323) (2010) (citations and punctuation omitted).

Hower argues that he did not enter his plea knowingly because he was not told that he would have to register as a sex offender or serve the remainder of his life on probation. Contrary to Hower’s claims, a review of the guilty plea hearing transcript shows that, before Hower entered his plea, the assistant district attorney expressly notified him that he would be required to register as a sex offender and, after serving 12 years, would spend the balance of his 20-year sentence on probation. (It is not clear what Hower means when he asserts that he was not informed that he would spend “the remainder” of his life on probation.) “We conclude that the record shows the trial court correctly found that [Hower] was fully advised of his rights and freely and voluntarily waived those rights.” Wright v. State, 292 Ga. 825, 827 (1) (742 SE2d 468) (2013) (citations omitted).

Hower argues that the transcript of the guilty plea hearing demonstrates that the trial court did not have before it a factual basis for accepting the plea as required by Uniform Superior Court Rule 33.9 (“Notwithstanding the acceptance of a plea of guilty, the judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea.”). A review of the transcript of the plea hearing shows that prior to the plea colloquy, the assistant district attorney reminded the court that it already had conducted a pretrial hearing. The trial court expressly referenced the pretrial hearing at which, as Hower’s attorney conceded at the hearing on the motion to withdraw, the facts of the case were discussed. The trial court also expressly found that there was a factual basis for the plea. Under these circumstances, Hower has not shown that there was an inadequate factual basis for his plea. See Adams v. State, 285 Ga. 744, 747 (4) (a) (683 SE2d 586) (2009) (trial court, who presided over the earlier trial of appellant’s co-indictee for the same offenses, was familiar with the facts and the court’s acceptance of the plea was deemed a factual finding that there was an adequate factual basis for the plea).

2. Hower’s absence from plea negotiations.

Hower argues that he was not present for a critical part of the proceedings, certain plea negotiations. The record of the guilty plea hearing demonstrates that he was absent from the courtroom when defense counsel, the assistant district attorney, and the court discussed a potential sentence should Hower plead guilty. The trial court had Hower brought back into the courtroom and expressly advised him of the content of the discussion.

The right to be present attaches “at any stage of [a] criminal proceeding that is critical to its outcome if [the defendant’s] presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U. S. 730, 745 (III) (107 SCt 2658, 96 LE2d 631) (1987) (defendant’s rights were not violated when he was absent from a hearing to determine the competency of two child witnesses against him). “[Our Supreme] Court has determined that a critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.” Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001) (citation and punctuation omitted) (holding that charge conference is not a proceeding at which a defendant has an unequivocal right to be present). See also Lyde v. State, 311 Ga. App. 512, 515-516 (1) (716 SE2d 572) (2011) (discussion of legal argument outside presence of defendant is not stage of proceeding at which defendant’s rights to fair trial are at risk).

Because Hower’s rights could not have been lost, his defenses waived, any privileges claimed or waived, or the outcome of the case substantially affected because of the plea negotiation from which he was absent — particularly when Hower himself had the absolute authority either to accept or reject the proposed plea deal — he has not shown that his absence violated his constitutional right to be present at all critical stages of his trial. See Powell v. United States, 2008 U. S. Dist. LEXIS 91381, *8 (E.D. Cal. Sept. 11, 2008) (“Petitioner cites none and the [c]ourt is unaware of any authority that a convicted defendant has any constitutional right to be present during plea negotiations between the prosecutor and defense counsel.”); People v. Harris, 222 AD2d 522, 523 (1995) (defendant’s absence from a pretrial conference to discuss a possible plea agreement did not violate his right to be present); Kruse v. State, 177 NW2d 322, 326 (Wis. 1970) (conferences in chambers, including plea negotiation, from which defendant was absent “cannot be considered part of any trial in the sense of one’s constitutional right to be present when acquiescence to the plea agreement must be made in court and recorded. . . .”).

Decided March 6, 2015

Reconsideration denied March 26, 2015.

Nathaniel J. Middleton, for appellant.

Robert D. James, Jr., District Attorney, Donna C. Stribling, Deborah D. Wellborn, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: BARNES, Presiding Judge.

text:
    A14A1558.
    LOPEZ-VASQUEZ v. THE STATE.
    (771 SE2d 218)
   BARNES, Presiding Judge.

Jamie Lopez-Vasquez appeals from the order of the trial court denying his motion for new trial following his conviction for trafficking in methamphetamine and possession of methamphetamine. Lopez-Vasquez contends on appeal that the trial court erred in allowing the State to treat his co-defendant as a hostile witness, improperly restricting his closing argument, and also erred in its jury charge on the credibility of a witness. He also contends that trial counsel was ineffective and that the evidence was insufficient to sustain his conviction. Upon our review, we affirm.

1. When a criminal defendant challenges the sufficiency of the evidence supporting his 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).

It is the duty of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Lomax v. State, 319 Ga. App. 693 (738 SE2d 152) (2013).

So viewed, the evidence demonstrates that an agent with the Drug Enforcement Administration (“DEA”) received information that there was a large quantity of methamphetamine located in a suspected “stash” house on Glendale Circle in Smyrna. The DEA and the Marietta-Cobb-Smyrna Narcotics Unit surveilled the house, and on September 26, 2012, they observed Lopez-Vasquez leaving the house. A DEA agent stopped Lopez-Vasquez and explained to him that they were investigating suspected drug activity at the house. The agent accompanied Lopez-Vasquez to the house and, after ascertaining that Lopez-Vasquez and Martin Munoz-Olveda, a co-defendant, lived in the house, requested their permission to search the residence, which the men granted. Upon entering the residence, the agents discovered digital scales and “a large amount of methamphetamine residue” on the kitchen table. When the men said they could not open the locked bedroom doors and refused consent to search the rooms, the agents obtained a search warrant and retrieved 17 pounds of methamphetamine and other drug apparatus from one of the bedrooms. The room also contained papers with Munoz-Olveda’s name. The agents also discovered a drink cooler containing methamphetamine oil in the garage. Lopez-Vasquez told agents that he slept on a sofa in the living room and did not use any of the bedrooms.

At trial, a DEA agent testified that a “stash” house is used to hold drugs for future distribution and that it is typically controlled and guarded by people staying there. He further testified that it was common for drug trafficking organizations to “rent a property and put a person in there to guard the stash house, and the provisions that are provided for that person... [can] be a monetary stipend to help them with paying the rent or paying for the utilities.” The agent testified that, as was typical with stash houses, the house was sparsely decorated and it had a security camera, and this was done so that the operation could be easily moved to another location.

Munoz-Olveda was tried jointly with Lopez-Vasquez, but entered a negotiated plea of guilty during the trial in exchange for his testimony as a State’s witness. He was subsequently declared a hostile witness, and admitted during his testimony that the men’s job was to watch over the drugs in the stash house, and that Lopez-Vasquez knew that the drugs were in the house and had agreed to guard the drugs in exchange for monetary help with bills.

Lopez-Vasquez contends that the evidence was insufficient to sustain his convictions for possession of and trafficking in methamphetamine. He contends that the evidence only shows that he “was guilty of being poor and living in a house that he had no control over.” We do not agree.

Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

(Citation omitted.) Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009), overruled in part on other grounds by Hamm v. State, 294 Ga. 791, 795 (2) (756 SE2d 507) (2014). “Any person who knowingly . . . has possession of 28 grams or more of methamphetamine . . . commits the felony offense of trafficking in methamphetamine[.]” OCGA § 16-13-31 (e) (2008). “[T]he knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance of criminal activity.” (Citations and punctuation omitted.) Able v. State, 312 Ga. App. 252, 258 (3) (718 SE2d 96) (2011). Even though there was no evidence that Lopez-Vasquez was in actual physical possession of the methamphetamine, if he knowingly had both the power and intention at a given time to exercise dominion over it, then he had constructive possession. Wilson v. State, 256 Ga. App. 741, 742 (1) (569 SE2d 640) (2002).

While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citation and punctuation omitted.) Woods v. State, 224 Ga. App. 52, 55 (4) (479 SE2d 414) (1996).

Here, the evidence demonstrated that Lopez-Vasquez lived at the house where the methamphetamine was found, that he was present at the scene when the drugs were discovered, and that the methamphetamine residue was found in the kitchen, and methamphetamine oil in the garage, both of which were common areas over which a resident might exercise control. The State was not required to show that Lopez-Vasquez was in sole or actual possession of the methamphetamine, rather, that he was in joint constructive possession of the contraband. Cochran, 300 Ga. App. at 94-95 (1) (a); Kahn v. State, 235 Ga. App. 229, 231 (1) (b) (509 SE2d 137) (1998) (while evidence that the defendant-owner or lessee shared premises with another does not demand a conviction, it may authorize the jury to find that the defendant was in at least joint possession of the contraband).

Moreover, the evidence showed that Lopez-Vasquez was more than merely present at the scene. In addition to showing that he lived at the residence in question, the evidence also demonstrated that Lopez-Vasquez knew that large quantities of methamphetamine were present in the residence and actively participated in guarding the methamphetamine in exchange for monetary benefit. “Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.” (Citation and emphasis omitted.) Howard v. State, 291 Ga. App. 386, 388 (662 SE2d 203) (2008). Based on the evidence previously discussed, the jury was entitled to reject as unreasonable Lopez-Vasquez’s defense that he merely lived in the house and had no control over what occurred there. See Kirby v. State, 275 Ga. App. 216, 217-218 (620 SE2d 459) (2005) (although defendant may not have actively participated in the manufacturing process, the evidence authorized the guilty verdict for aiding in the manufacturing by knowingly providing the location). See also OCGA § 16-2-20 (parties to a crime).

Accordingly, we find that there was sufficient evidence to find Lopez-Vasquez guilty of the crimes charged.

2. Lopez-Vasquez next contends that the trial court erred in allowing the State to treat one of its witnesses, Lopez-Vasquez’s co-defendant, Munoz-Olveda, as a hostile witness, thereby allowing the State to ask leading questions. We disagree.

As previously noted, Lopez-Vasquez and his co-defendant, MunozOlveda, were initially tried together, but during the trial, MunozOlveda decided to plead guilty. As part of the plea agreement, Munoz-Olveda agreed to testify truthfully about the methamphetamine operation and testify against Lopez-Vasquez, but his testimony was not consistent with the proffer the State was given. Instead, Munoz-Olveda professed ignorance about any of the items discovered during the search, and was evasive and unresponsive in his testimony. As a result, at the State’s request, the trial court permitted Munoz-Olveda to be treated as a hostile witness. Lopez-Vasquez did not object to the ruling, and “[a] defendant cannot acquiesce in a trial court’s ruling below and then complain about that ruling on appeal. Acquiescence deprives him of the right to complain further [;] thus, the issue is waived for purposes of appeal.” (Citations and punctuation omitted.) McNabb v. State, 292 Ga. App. 395, 399 (2) (664 SE2d 800) (2008).

Moreover, when a witness demonstrates reluctance to testify about a crime, a trial court has “great latitude to permit the [prosecutor] to treat [the witness] as a hostile witness and propound leading questions.” Knight v. State, 266 Ga. 47, 49 (4) (b) (464 SE2d 201) (1995). Likewise, “[w]hether leading questions are permitted is within the trial court’s discretion, and exercise of that discretion will not be interfered with by the appellate courts unless the discretion is abused.” (Citations omitted.) Id. See Culler v. State, 277 Ga. 717, 721 (5) (594 SE2d 631) (2004) (“A trial court has discretion to permit leading questions on direct examination when a witness is reluctant, hostile, or overly nervous.”); see also OCGA § 24-6-611 (c).

In these circumstances, we discern no abuse of discretion on the part of the trial court.

3. Lopez-Vasquez next contends that the trial court erred in restricting his closing argument. We note initially that although Lopez-Vasquez asserts that the trial court erred in prohibiting him from arguing that the only monetary benefits Lopez-Vasquez had received in relation to the methamphetamine operation was that he enjoyed the benefit of having household expenses paid, his perfunctory argument on appeal consists entirely of the alleged error. He does not assert any harm from the trial court’s ruling, nor does he provide any legal authority or argument for this asserted error. Thus any claim of error arising from this issue has been deemed abandoned. See Court of Appeals Rule 25 (c) (2).

Even if properly enumerated, while

[t]he range of discussion during closing argument is ... very wide[,]... counsel should not go outside the facts appearing in the case and lug in extraneous matters as if they were a part of the case. What the law condemns is the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.

(Citations and punctuation omitted.) Conner v. State, 251 Ga. 113, 122-123 (6) (303 SE2d 266) (1983).

The record demonstrates that the trial court interrupted defense counsel during closing and cautioned him that his argument was potentially confusing to the jury and was “over the line” when he asserted that there was a distinction between giving safe haven to drugs and merely benefitting from the knowledge that someone else in the residence was giving safe haven to the drug. Defense counsel had argued that in the first instance, a party was guilty of a crime, but in the second, he was not. The trial court advised defense counsel that in either case, the party was guilty and could not “take the benefit of ill-gotten goods” and that he should “get away” from that argument. Defense counsel responded that he would “move on for now,” but asked to be heard in the matter later. After the charge conference, defense counsel requested that he be allowed to preserve an objection to the trial court’s restriction of his argument.

“[T]he trial court has discretion to determine the range of proper closing argument.” (Punctuation and footnote omitted.) Lipsey v. State, 287 Ga. App. 835, 838 (3) (652 SE2d 870) (2007). It is not error for a trial court to restrict an argument that misleads or confuses the law. See Johnson v. State, 186 Ga. App. 891, 892 (1) (369 SE2d 48) (1988) (trial court did not err in interrupting defense counsel’s closing argument when counsel misstated law); Brown v. State, 319 Ga. App. 680, 683 (3) (738 SE2d 132) (2013) (“In limiting Brown’s closing argument, the trial court correctly determined that it is the court’s responsibility to charge the law.”).

Accordingly, we discern no abuse of the trial court’s discretion under these circumstances.

4. Likewise, we find no error in the trial court’s jury charge on impeachment of a witness. Although Lopez-Vasquez contends that the trial court should have included in its charge on impeachment that the witness could be impeached by a prior felony conviction,

when an instruction upon the subject of impeachment is abstractly correct, and not apparently prejudicial, the fact that fuller instructions upon the subject could properly have been given will not require the grant of a new trial, in the absence of a written request calling the attention of the court to the propositions which have been omitted and which it is contended are material.

Decided March 26, 2015.

Judson R. Knighton, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Gee v. State, 110 Ga. App. 439 (2) (138 SE2d 700) (1964). See Sanders v. State, 67 Ga. App. 706 (4) (21 SE2d 276) (1942) (it was not reversible error to fail, without request, to charge as to a particular mode or method of impeachment).

The record does not reflect, nor does Lopez-Vasquez assert, that he requested that the impeachment charge include that a party could be impeached by a prior felony conviction.

Accordingly, this enumeration fails.

5. Lopez-Vasquez also contends that trial counsel was ineffective for failing to object to the trial court’s ruling that his co-defendant, Munoz-Olveda, could be treated as a hostile witness. We do not agree.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). As we found in Division 2, the trial court did not err in holding that Munoz-Olveda could be treated as a hostile witness, and consequently, any objection to this instruction would have lacked merit. And “[t]he failure to pursue a futile objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008). Because Lopez-Vasquez has failed to meet his burden of proving that his trial counsel’s performance was deficient, he cannot maintain a claim of ineffective assistance of counsel.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The General Assembly amended subsection (e) of OCGA § 16-13-31, effective July 1, 2013, see Ga. L. 2013, p. 222, § 4/HB 349, to omit the word “knowingly,” hut that amendment does not apply in the present case because the underlying offense occurred in 2012. See id. § 21 (“This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall he governed by the statute in effect at the time of such offense.”).

       It is unclear from the record what the proffered testimony was and how it differed from Munoz-Olveda’s actual trial testimony.

       Lopez-Vasquez was tried after January 2013, so our new Evidence Code applies. Former OCGA § 24-9-63 is now codified in OCGA § 24-6-611, enacted by Ga. L. 2011, p. 99, § 2/HB 24.