KAUFMAN v. the STATE. , 810 S.E.2d 585 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
RAY and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 26, 2018
In the Court of Appeals of Georgia
A17A1881. KAUFMAN v. THE STATE.
DILLARD, Chief Judge.
Following trial, a jury convicted Christopher Kaufman of three counts of
stalking, two counts of criminal trespass, five counts of engaging in harassing
communications, eleven counts of criminal attempt to commit a misdemeanor by
violation of a protective order, and one count of violation of a protective order. On
appeal, Kaufman challenges the sufficiency of the evidence supporting two of his
stalking convictions. He further argues that the trial court erred in denying his motion
in arrest of judgment as to the same two stalking convictions, based on alleged
defects in the accusation, and in denying his claims of ineffective assistance of
counsel. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that S. Z. met Kaufman in 2011, while she was attending Kennesaw State University,
and the two started dating that same year. Shortly thereafter, S. Z. and Kaufman
began cohabitating and ultimately had a child together. But less than a year later, their
relationship began to sour as Kaufman would belittle S. Z. and frequently lose his
temper with her. Over the course of next year or so, Kaufman’s poor treatment of S.
Z. escalated, as he verbally and physically abused her and forced her to engage in
sexual intercourse. During this time, S. Z. made several attempts to end their
relationship, but Kaufman refused to accept her pleas and told S. Z. that things would
only become worse if she called the police.
In 2014, although S. Z. was still scared of Kaufman, she permanently ended the
relationship and moved in with her parents in their Canton home. Nevertheless,
Kaufman continued contacting S. Z., incessantly calling her and sending her text
messages, often requesting visitation with their son as a means of maintaining
contact. On a few occasions, S. Z. agreed to let Kaufman see their child, but when she
conditioned that any meetings occur at a public place, such as a restaurant, rather than
1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
2
her parents’ home, Kaufman would become angry. And at some point within this time
frame, Kaufman told S. Z. that if she ever started dating someone else, he would kill
that person and her.
In January 2016, Kaufman was apparently homeless, but he continued to show
up at S. Z.’s parents’ home without invitation or notice. In one instance, S. Z. and her
mother reluctantly agreed to allow Kaufman to come to the house to pick up some
tools that he had left there and needed for work, but once at the house, Kaufman
refused to leave when S. Z. demanded that he do so, and he then threatened to slit S.
Z.’s father’s throat when he intervened on his daughter’s behalf. Eventually, Kaufman
left, and S. Z. told him not to return. Nevertheless, over the next several weeks,
Kaufman continued to contact S. Z. numerous times every day by calling her and
sending text messages to her mobile phone. Alarmingly, some of Kaufman’s texts to
S. Z. demonstrated that he was tracking her movements. Additionally, the tone of
Kaufman’s messages became increasingly angrier when S. Z. attempted to ignore
them.
On February 11, 2016, S. Z. filed a report with the Cherokee County Sheriff’s
Office regarding Kaufman’s actions. Specifically, she reported that Kaufman was
stalking her and watching her from the woods near her parents’ home. The next day,
3
Kaufman went to S. Z.’s home while she was not there, dropped off some laundry,
and admitted to her that he had done so, via a text, despite having been told not to
return. An investigator contacted S. Z. a few days later and encouraged her to obtain
a protective order against Kaufman, but she expressed a reluctance to do so for fear
that he would retaliate.
In the early morning hours on February 27, 2016, Kaufman made repeated
attempts to contact S. Z., via text message, and when S. Z. returned to her parents’
home from running some errands just before noon, she saw Kaufman near the garage.
Frightened, S. Z. backed her vehicle out of the driveway and called her mother, who
in turn contacted law enforcement to report Kaufman’s presence. Two deputies
responded, found Kaufman a few blocks away from the home, walking toward a
nearby Waffle House, and issued him a warning for criminal trespass. Afterward, the
deputies forwarded their report of the incident to the investigator who S. Z. had
initially contacted, and he called S. Z. to schedule a follow-up meeting. But a few
days before her scheduled meeting with the investigator, S. Z. was inspecting the
interior of a horse trailer on her parents’ property that she was trying to sell, when she
4
found a sleeping bag and a Waffle House cup. Immediately, she called the
investigator, who responded to the scene and canvassed the area looking for
Kaufman. Unable to find him at that time, the investigator left his card at the nearby
Waffle House and requested that the employees have Kaufman contact him if he
returned there.
Two days later, on March 3, 2017, Kaufman called the investigator from the
Waffle House, and the investigator dispatched deputies to the restaurant to arrest him.
The deputies then transported Kaufman to the investigator’s office to be interviewed,
and during that interview, Kaufman admitted to placing the sleeping bag inside S.
Z.’s horse trailer. Following the interview, deputies transported Kaufman to the
Cherokee County Detention Center. But despite being incarcerated, Kaufman
continued his attempts to contact S. Z., placing more than 60 phone calls to her from
the detention center’s telephones until March 7, 2016, when detention center
personnel, after being alerted by S. Z., blocked his ability to call her number.
On March 14, 2016, while still incarcerated, Kaufman sent S. Z. a letter, in
which he expressed remorse and his continued love for her but also blamed her for
the issues they were having. Finding the letter intimidating, S. Z. provided it to the
5
investigator, who subsequently obtained additional criminal warrants against
Kaufman. Undaunted, Kaufman sent S. Z. another letter nearly one month later, and
then a third on May 9, 2016. S. Z. found the letters frightening and forwarded both
of them to the investigator. She then obtained an ex parte protective order, and a law-
enforcement officer served Kaufman with the order at the detention center. Shortly
thereafter, S. Z. obtained a twelve-month protective order, which was then similarly
served on Kaufman by an officer.
Yet despite these two protective orders, Kaufman did not cease his efforts to
contact S. Z., with records from the detention center indicating that he continued
trying to call her phone number from detention center telephones even though her
number had been blocked. In addition, on July 31, 2016, one week before Kaufman’s
scheduled trial, S. Z. received a text message from a phone number she did not
recognize but which she believed, based on the content, was sent to her at Kaufman’s
behest. Ultimately, the investigator determined that the text message was sent from
the daughter of one of Kaufman’s cellmates. And indeed, during an interview, the
inmate admitted that Kaufman requested that he relay a message to S. Z.
6
Thereafter, the State charged Kaufman, via accusation, with three counts of
stalking, two counts of criminal trespass, five counts of engaging in harassing
communications, eleven counts of criminal attempt to commit a misdemeanor by
violation of a protective order, and one count of violation of a protective order. The
case then proceeded to trial, during which the aforementioned evidence and multiple
exhibits, including Kaufman’s text messages and letters to S. Z., were admitted. And
at the conclusion of the trial, the jury found Kaufman guilty on all counts in the
accusation. Immediately following the jury’s verdict, Kaufman moved in arrest of
judgment as to the stalking charges in Counts 2 and 3 of the accusation, arguing that
the accusation was defective as to those counts. But the trial court denied the motion.
Kaufman subsequently obtained new counsel and filed a motion for new trial,
in which he argued, inter alia, that his trial counsel rendered ineffective assistance.
The trial court conducted a hearing on the motion, during which Kaufman’s trial
counsel testified regarding his handling of the case. At the conclusion of the hearing,
the trial court denied Kaufman’s motion from the bench, and shortly thereafter, it
issued an order to that effect. This appeal follows.
1. Kaufman contends that the evidence was insufficient to support his
convictions on the charges of stalking. We disagree.
7
When a criminal conviction is appealed, the evidence must be viewed in the
light most favorable to the verdict, and the appellant no longer enjoys a presumption
of innocence.2 And, of course, in evaluating the sufficiency of the evidence, “we do
not weigh the evidence or determine witness credibility, but only determine whether
a rational trier of fact could have found the defendant guilty of the charged offenses
beyond a reasonable doubt.”3 Thus, the jury’s verdict will be upheld so long as “there
is some competent evidence, even though contradicted, to support each fact necessary
to make out the State’s case.”4 With these guiding principles in mind, we turn now
to Kaufman’s specific claim of error.
Under OCGA § 16-5-90 (a) (1), “[a] person commits the offense of stalking
when he or she 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
2
See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).
3
Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation
omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979).
4
Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation
omitted); accord Westbrooks v. State, 309 Ga. App. 398, 399-400 (1) (710 SE2d 594)
(2011).
8
harassing and intimidating the other person. . . .”5 Under this same statute, “contact”
means
any communication including without being limited to communication
in person, by telephone, by mail, by broadcast, by computer, by
computer network, or by any other electronic device; and the place or
places that contact by telephone, mail, broadcast, computer, computer
network, or any other electronic device is deemed to occur shall be the
place or places where such communication is received. . . .6
Additionally, OCGA § 16-5-90 (a) (1) provides that “harassing and intimidating”
means “[a] knowing and willful course of conduct directed at a specific person which
causes emotional distress by placing such person in reasonable fear for such person’s
safety or the safety of a member of his or her immediate family, by establishing a
pattern of harassing and intimidating behavior, and which serves no legitimate
purpose. . . .”7 And this Court has held that the phrase “course of conduct” dictates
that “a pattern of behavior must be shown, but such a pattern may include the prior
5
See OCGA § 16-5-90 (a) (1).
6
See id.
7
See id.
9
history between the parties.”8 Importantly, a defendant need not engage in
“unequivocally hostile conduct or make explicit threats in order to be convicted of
stalking.”9 In fact, even behavior that is not “overtly threatening can provide the
requisite degree of intimidation and harassment if it is ongoing, repetitious, and
engaged in despite the communicated wishes of the victim.”10
Here, as previously discussed, the evidence shows that S. Z. unequivocally
demanded that Kaufman stay away from her parents’ home, where she lived, but he
repeatedly returned there despite S. Z.’s admonitions and a criminal-trespass warning
from law-enforcement officers. In addition, Kaufman incessantly called and sent text
messages to S. Z. on her mobile phone, becoming increasingly angrier the longer she
tried to ignore such contact. Moreover, the content of many of those calls and
messages indicated that Kaufman was tracking S. Z.’s movements. Furthermore, even
after Kaufman was arrested, he sent S. Z. three separate letters and attempted to call
her more than 60 times using the detention center’s phones. And as S. Z. testified,
8
Austin v. State, 335 Ga. App. 521, 524 (1) (782 SE2d 308) (2016) (citation
and punctuation omitted).
9
Id. (punctuation omitted).
10
Id. (punctuation omitted).
10
Kaufman’s unceasing attempts to watch, communicate with, and harass her placed her
in emotional distress sufficient to put her in fear for her safety. Finally, although
Kaufman argues that his attempts to contact S. Z. were merely expressions of his love
and his desire to see his son, “it is for the finder of fact to determine whether the
defendant acted with the requisite degree of criminal intent in engaging in the act for
which he is prosecuted.”11 Accordingly, the State presented sufficient evidence to
support Kaufman’s convictions on the charges of stalking.12
11
Krepps v. State, 301 Ga. App. 328, 329 (1) (687 SE2d 608) (2009)
(punctuation omitted); accord Austin, 335 Ga. App. at 525 (1); see Patterson v. State,
284 Ga. App. 780, 784 (4) (b) (645 SE2d 38) (2007) (holding that it was for a jury to
determine whether defendant’s attempts to contact the victim were intended to harass
and intimidate her).
12
See Austin, 335 Ga. App. at 524-25 (1) (holding that evidence was sufficient
to support defendant’s stalking convictions when defendant repeatedly returned to
victim’s home despite her admonitions to stop, including doing so more than one time
after receiving a criminal-trespass warning from police, and repeatedly sent victim
angry messages, which made victim fear for her safety); Placanica v. State, 303 Ga.
App. 302, 303-04 (693 SE2d 571) (2010) (holding that evidence supported conviction
for stalking when it showed that, after victim “screamed” at defendant to “leave her
alone,” defendant persisted in making unwanted contact with victim by showing up
at her gym, sending her “tons of text messages,” all of which made victim fear
defendant); Krepps, 301 Ga. App. at 329 (1) (holding that evidence was sufficient to
support stalking conviction when defendant repeatedly called victim without the
victim’s consent for the purpose of harassing and intimidating him); see also
Patterson, 284 Ga. App. at 784 (4) (b) (holding that evidence was sufficient to
support defendant’s conviction for aggravated stalking when, despite protective
order, he persisted in calling victim, sending her notes, and showing up at her home).
11
2. Kaufman also contends that the trial court erred in denying his motion in
arrest of judgment as to the stalking convictions charged in Counts 2 and 3 of the
accusation, specifically arguing that those two counts were fatally defective. Again,
we disagree.
It is well established that a motion in arrest of judgment must be “based upon
a defect that the accused might otherwise have challenged by a timely general
demurrer.”13 Under Georgia law, a general demurrer “challenges the validity of an
indictment by asserting that the substance of the indictment is legally insufficient to
charge any crime,” and it should be granted “only when an indictment is absolutely
void in that it fails to charge the accused with any act made a crime by the law.”14
Stated more plainly,
the true test of the sufficiency of an indictment to withstand a general
demurrer is found in the answer to the question: Can the defendant
We further note that although Kaufman’s challenge to the sufficiency of the evidence
focuses solely on his convictions on the charges of stalking, we have reviewed the
record and conclude that there was sufficient evidence for the jury to find Kaufman
guilty beyond a reasonable doubt of the remaining charges for which he was
convicted. See Jackson, 443 U.S. at 318-20 (III) (B).
13
Lowe v. State, 276 Ga. 538, 539 (2) (579 SE2d 728) (2003); accord Poole
v. State, 326 Ga. App. 243, 247 (2) (a) (756 SE2d 322) (2014).
14
Poole, 326 Ga. App. at 247 (2) (a) (punctuation omitted).
12
admit the charge as made and still be innocent? If he can, the indictment
is fatally defective. If the indictment is fatally defective, the sufficiency
of the indictment can be questioned by general demurrer or by motion
in arrest of judgment.15
Furthermore, an indictment is not void if “it is sufficient to place the defendant on
notice of the charges against him and enable him to prepare an intelligent defense.”16
And in attacking an indictment after the verdict, “every presumption and inference
is in favor of the verdict.”17
As noted supra, OCGA § 16-5-90 (a) (1) provides: “A person commits the
offense of stalking when he or she 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. . . .” And in this
matter, Count 2 of the accusation alleged that in Cherokee County, Kaufman “did
15
Id. at 247-48 (2) (a) (punctuation omitted).
16
Robles v. State, 277 Ga. 415, 421 (10) (589 SE2d 566) (2003) (punctuation
omitted); accord Ashmore v. State, 323 Ga. App. 329, 332 (2) (746 SE2d 927) (2013).
17
Ashmore, 323 Ga. App. at 332 (2) (punctuation omitted).
13
unlawfully then and there commit the offense of stalking by contacting [S. Z.],
without the consent of said person, for the purpose of harassing and intimidating said
person, in violation of OCGA § 16-5-90 contrary to the laws of this State. . . .”
Similarly, Count 3 alleged that in Cherokee County, Kaufman “did unlawfully then
and there commit the offense of stalking by contacting [S. Z.] via mail, without the
consent of said person, for the purpose of harassing and intimidating said person, in
violation of OCGA § 16-5-90 contrary to the laws of this State. . . .”
Kaufman argues that Count 2 of the accusation was defective because it alleged
neither the means by which he contacted S. Z. nor the place at which he contacted
her. And he similarly maintains that Count 3 was defective because it also failed to
allege the place where S. Z. received the letter Kaufman sent to her from the detention
center. But the law of this state does not “require expression of a charge contained in
an indictment, in the verbatim language of the statute.”18 And here, while not
verbatim, the allegations in Counts 2 and 3 sufficiently stated the offense of stalking
in the terms and language of the statute. Consequently, the accusation was sufficient
18
Chenault v. State, 234 Ga. 216, 223 (6) (215 SE2d 223) (1975) (punctuation
omitted); accord Phillips v. State, 278 Ga. App. 198, 202 (2) (a) (628 SE2d 631)
(2006).
14
to put Kaufman on notice of the crimes with which he was charged; and he could not
admit the facts as alleged and still be innocent of committing a crime under OCGA
§ 16-5-90 (a) (1). Indeed, the fact that the place at which he contacted S. Z. was not
set forth in either Count and the method by which he contacted her was not stated in
Count 2 did not render the accusation insufficient because, as noted,
[t]he true test of the sufficiency of an indictment is not whether it could
have been more definite, but whether it contains the elements of the
offense charged, sufficiently informs the defendant of the charges so that
he can present his defense without being surprised by the evidence and
protects him against another prosecution for the same offense.19
Moreover, Kaufman’s specific contention as to the manner in which Counts 2
and 3 of the accusation were defective “was more of a special demurrer issue that was
19
Pulliam v. State, 309 Ga. App. 477, 480-81 (2) (711 SE2d 21) (2011)
(punctuation omitted); see Poole, 326 Ga. App. at 248 (2) (a) (holding that indictment
alleging the crime of terroristic threats was not fatally defective for failing to specify
the “crime of violence” threatened against the victims); Phillips, 278 Ga. App. at 201-
03 (2) (a) (holding that indictment alleging offense of aggravated stalking and
omitting word “intimidating” in alleging purpose with which defendant committed
his unlawful acts was not fatally defective because indictment alleged that
defendant’s acts of contacting victim were “unlawfully” committed and “contrary to
laws of State,” and, thus, inference was that act was done for purpose of harassment
and intimidation).
15
missed.”20 And importantly, in contrast to a general demurrer, a special demurrer
“merely objects to the form of an indictment and seeks more information or greater
specificity about the offense charged.”21 But a special demurrer is waived if “not
raised before pleading to the merits of the indictment and cannot be raised after
conviction by a motion in arrest of judgment.”22 Thus, by failing to timely file a
special demurrer, Kaufman “waived his right to seek greater specificity in the form
of the indictment, and he cannot now resurrect his challenge to the indictment in the
guise of a motion in arrest of judgment.”23
20
Poole, 326 Ga. App. at 248 (2) (a) (punctuation omitted); see State v. Delaby,
298 Ga. App. 723, 725-27 (681 SE2d 645) (2009) (noting that defendant filed special
demurrer to influencing a witness counts on ground that use of word “intimidation”
in indictment was generic and should be defined with greater specificity); State v.
Tate, 262 Ga. App. 311, 314 (2) (b) (585 SE2d 224) (2003) (finding that defendant
filed special demurrer to terroristic threats count on ground that indictment failed “to
assert the specific threat alleged to have been made by him”).
21
Poole, 326 Ga. App. at 249 (2) (a) (punctuation omitted); accord State v.
Wilson, 318 Ga. App. 88, 92 (1) (732 SE2d 330) (2012).
22
Poole, 326 Ga. App. at 249 (2) (a) (punctuation omitted); accord Wilson, 318
Ga. App. at 92 (1).
23
Poole, 326 Ga. App. at 249 (2) (a); see McDaniel v. State, 298 Ga. App. 558,
559-60 (680 SE2d 593) (2009) (holding that the defendant’s failure to file a timely
special demurrer seeking additional information constituted a waiver of the right to
be tried on a perfect indictment).
16
Furthermore, even if we were to concede (for the sake of argument) that Counts
2 and 3 of the accusation lacked adequate specificity, “[t]o prevail on a claim that the
indictment failed to give adequate notice and thereby worked a substantial denial of
due process, [Kaufman] was required as well to show prejudice.”24 But at the trial in
this matter, Kaufman’s defense was not a denial that he made repeated attempts to
contact S. Z. Rather, as he notes in his challenge to the sufficiency of the evidence,
the primary defense was that his attempts to contact S. Z. were not for purposes of
intimidation or harassment but were based on his expressions of love and a desire to
see his son. And had the jury accepted that defense, it would have been effective
against all of the stalking charges. Accordingly, Kaufman has failed to show that he
was prejudiced by the alleged lack of specificity in the accusation.25
24
Hill v. Williams, 296 Ga. 753, 758-59 (770 SE2d 800) (2015); see Russell v.
United States, 369 U.S. 749, 763 (82 SCt 1038, 8 LE2d 240) (1962) (“Convictions
are no longer reversed because of minor and technical deficiencies which did not
prejudice the accused.” (citation omitted)).
25
See Hill, 296 Ga. at 759-60 (holding that defendant failed to show any
prejudice sufficient to make out his claim in habeas that indictment failed to give
adequate notice that he could be convicted at trial of the statutory rape, in addition to
forcible rape and child molestation, of child victim when his actual defense trial was
that he had no sexual relations with victim whatsoever).
17
3. Finally, Kaufman contends that the trial court erred in denying his claims of
ineffective assistance of counsel. Once again, we disagree.
In evaluating Kaufman’s enumerated claims that his trial counsel rendered
constitutionally ineffective assistance, we apply the two-pronged test established in
Strickland v. Washington,26 which requires Kaufman to show that his trial counsel’s
performance was “deficient and that the deficient performance so prejudiced him that
there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial
would have been different.”27 Additionally, there is a strong presumption that trial
counsel’s conduct falls within the broad range of reasonable professional conduct,
and a criminal defendant must overcome this presumption.28 In applying the second
prong, the question is whether “there exists a reasonable probability that, but for his
26
466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
27
Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see
Strickland, 466 U.S. at 687 (III); Ashmid v. State, 316 Ga. App. 550, 556 (3) (730
SE2d 37) (2012).
28
Chapman, 273 Ga. at 350 (2); see Cammer v. Walker, 290 Ga. 251, 255 (1)
(719 SE2d 437) (2011) (“A claim of ineffective assistance of counsel is judged by
whether counsel rendered reasonably effective assistance, not by a standard of
errorless counsel or by hindsight.” (punctuation omitted)).
18
counsel’s errors, the jury would have had reasonable doubt regarding appellant’s
guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”29 And unless clearly erroneous, this Court “will uphold
a trial court’s factual determinations with respect to claims of ineffective assistance
of counsel; however, a trial court’s legal conclusions in this regard are reviewed de
novo.”30 Bearing this analytical framework in mind, we turn now to Kaufman’s
specific claims.
(a) Failing to Exclude Improper Character Evidence. Kaufman contends that
his counsel rendered ineffective assistance by failing to adequately review all of the
State’s evidence, failing to file a pre-trial motion to exclude evidence showing that
Kaufman had recently completed first-offender probation, and then failing to move
for a mistrial when such evidence was presented to the jury. We disagree.
At trial, during the testimony of the primary investigator, the State submitted
and played a video recording of the investigator interviewing Kaufman following his
29
Ashmid, 316 Ga. App. at 556 (3) (punctuation omitted); Strickland, 466 U.S.
at 694 (III) (B).
30
Sowell v. State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014).
19
arrest. During the interview, Kaufman began to discuss the fact that he was on first-
offender probation, but before any further details were revealed, the State stopped the
recording, and a bench conference ensued outside the presence of the jury. Kaufman
objected that the reference to his probation status had improperly put his character
into evidence. The State’s prosecutor agreed that the reference to Kaufman’s
probation status on the interview in the recording should not have been played.
Nevertheless, she claimed that the revelation was the result of an innocent oversight,
explaining that two separate recordings existed and that while the second recording
contained several references to Kaufman’s criminal history and probation status, she
and Kaufman’s counsel had agreed to only show the first recording and that this
second recording would not be played. Unfortunately, as the State’s prosecutor
further explained, she had not realized that this first recording also contained a
passing reference to that probation status.
During the bench conference, Kaufman’s trial counsel corroborated the
prosecutor’s explanation and admitted that he also had not realized that the first
recording contained a reference to Kaufman’s probation status. Defense counsel then
moved for a mistrial. But after further discussion with the trial court, which indicated
20
it was not inclined to grant a mistrial, and Kaufman himself, trial counsel agreed that
a curative instruction would be sufficient. Subsequently, the trial court brought the
jury back in to the courtroom, admonished the State for not redacting the reference
to Kaufman’s first-offender probation, and instructed the jury to disregard the
comment entirely. The trial court concluded its instruction by asking the jurors if any
of them would have difficulty disregarding the comment. And when one juror
admitted that he would, in fact, find it difficult, the trial court and both parties agreed
that once both parties rested, that particular juror would be designated as an alternate
and would not participate in deliberations.
Kaufman now argues that his trial counsel rendered ineffective assistance by
failing to file a motion to exclude the reference to Kaufman’s first-offender probation
and then failing to seek a mistrial after this improper character evidence was
presented to the jury. But as noted supra, both the State’s prosecutor and Kaufman’s
trial counsel were unaware that the recording the State intended to play contained any
references to Kaufman’s first-offender probation, and trial counsel immediately
objected when the evidence was presented. And during the hearing on Kaufman’s
motion for new trial, his former counsel testified that he did initially seek a mistrial
21
but agreed to a curative instruction based on Kaufman’s expressed desire to proceed
with the trial and the trial court’s apparent disinclination to grant a mistrial. In light
of these particular circumstances, trial counsel’s failure to seek a mistrial did not
constitute deficient performance.31 Moreover, given the overwhelming evidence of
Kaufman appearing at S. Z.’s home without her permission, his repeated phone calls,
his incessant sending of text messages, and his letters mailed to S. Z. from the
detention center where he was incarcerated, Kaufman “has failed to show a
reasonable probability that, but for the alleged errors related to the bad character
evidence, the outcome of the trial would have been more favorable to him.”32
31
See Smith v. State, 294 Ga. App. 692, 706 (10) (g) (670 SE2d 191) (2008)
(holding that trial counsel did not render ineffective assistance by failing to seek a
mistrial as a remedy to witness’s passing reference to defendant’s criminal history
because there was no reasonable probability that trial court would have granted
mistrial); Head v. State, 288 Ga. App. 205, 208 (2) (653 SE2d 540) (2007) (holding
that counsel’s failure to request a mistrial did not constitute ineffective assistance
because it affirmatively appeared from the record that the trial court in its discretion
would have denied the request); see also Hunter v. State, 281 Ga. 526, 530 (3) (640
SE2d 271) (2007) (holding that given the trial court’s prompt and pointed curative
instruction and given that the improper reference was inadvertent, the trial court did
not abuse its discretion in denying the motion for mistrial). See generally Ventura v.
State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (“The failure to pursue a futile
objection does not amount to ineffective assistance.”).
32
Toomer v. State, 292 Ga. 49, 59 (4) (734 SE2d 333) (2012); see Armour v.
State, 290 Ga. 553, 556 (2) (c) (722 SE2d 751) (2012) (finding that the “fleeting
introduction” of evidence that defendant had been previously arrested on a “gun
22
(b) Failure to Object to Victim’s Use of Term “Rape.” Kaufman also contends
that this trial counsel rendered ineffective assistance by failing to object to S. Z.’s
testimony, claiming that Kaufman had raped her during their relationship but prior
to the incidents upon which the stalking charges were based. Again, we disagree.
During Kaufman’s trial, and as previously noted, S. Z. testified that just prior
to permanently ending her relationship with Kaufman, he forced her to engage in
sexual intercourse. And in fact, on three separate occasions during her trial testimony,
she specifically used the term “rape” when describing Kaufman’s actions in this
particular regard. Kaufman’s trial counsel lodged no objection to any of the instances
in which S. Z. characterized Kaufman’s conduct as rape. But during the hearing on
the motion for new trial, when explicitly asked about this issue, Kaufman’s trial
counsel testified that it was difficult but that he decided against objecting, stating “[i]f
I object saying it’s not relevant to the issue and lose, it’s disastrous because I have
charge” and for giving false information to a police officer did not create “a
reasonable probability that the outcome of the trial would have been different,
because the charges were never mentioned again during the trial”); Patterson v. State,
274 Ga. App. 341, 345 (4) (d) (618 SE2d 81) (2005) (denying ineffective assistance
of counsel claim based on failure to request a mistrial for the improper admission of
character evidence because of the strength of evidence of the defendant’s guilt).
23
then called attention to it and made it an issue. It was my — you know, better to just
let it go. . . .”
On appeal, Kaufman argues that trial counsel’s failure to object to S. Z.’s
testimony claiming that Kaufman had raped her constituted ineffective assistance. But
Georgia appellate courts have held that a decision not to object to certain testimony
at trial to avoid drawing attention to it—as trial counsel decided here—is a
“legitimate trial strategy that falls within the range of reasonable professional
conduct.”33 Thus, given the strategic nature of counsel’s decision with respect to this
evidence, “it can provide no grounds for reversal unless it was so patently
unreasonable that no competent attorney would have chosen it.”34 And here, Kaufman
did not carry his burden of rebutting the presumption that his trial counsel’s decision
33
Durham v. State, 292 Ga. 239, 241-42 (4) (a) (734 SE2d 377) (2012)
(punctuation omitted); see Brown v. State, 321 Ga. App. 765, 768 (2) (743 SE2d 452)
(2013) (holding that trial counsel’s decision not to object to testimony of defendant’s
alibi witness referencing defendant’s involvement in other robberies, so as to avoid
drawing jury’s attention to it, was strategic decision and thus would not support claim
of ineffective assistance of counsel); Greenwood v. State, 309 Ga. App. 893, 895 (1)
(a) (714 SE2d 602) (2011) (holding that trial counsel’s decision against objecting to
improper evidence of defendant’s bad character because he wanted to avoid drawing
jury’s attention to the issue was reasonable trial strategy and did not amount to
ineffective assistance of counsel).
34
Brown, 321 Ga. App. at 768 (2) (punctuation omitted).
24
was reasonable.35 Accordingly, the trial court did not err in denying Kaufman’s claim
of ineffective assistance in this regard.
For all these reasons, we affirm Kaufman’s convictions and the denial of his
motion for new trial.
Judgment affirmed. Self, J., concurs. Ray, J., concurs in judgment only as to
Division 3 (b) and otherwise fully concurs.
* DIVISION 3 (b) OF THIS OPINION IS PHYSICAL PRECEDENT ONLY.
COURT OF APPEALS RULE 33.2 (a).
35
See id.
25