Mamadou Lamine Sambou v. State ( 2021 )

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN, P. J., and BROWN, J.
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 16, 2021
In the Court of Appeals of Georgia
A20A1764. SAMBOU v. THE STATE.
DILLARD, Presiding Judge.
Following trial, a jury convicted Mamadou Sambou on one count of identity
fraud and one count of forgery in the first degree. Sambou now appeals his
convictions and the denial of his motion for new trial, arguing (1) the evidence
supporting his first degree forgery conviction was insufficient; (2) the trial court erred
in sentencing him as a recidivist under OCGA § 17-10-7 (a), based upon his 2016
guilty plea to a felony in the State of New York; (3) the trial court erred in failing to
apply the rule of lenity by sentencing him for the felony of identity fraud rather than
the misdemeanor of giving a false name to a law enforcement officer; and (4) the trial
court erred in denying his claim that defense counsel rendered ineffective assistance.
For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that in 2017, Moustapha Ndiaye was living in Savannah and employed by Delta
Global Services at the Savannah airport. Ndiaye also worked part-time as an Uber
driver, and he was interested in eventually obtaining a taxi license. That same year,
Ndiaye and a friend planned a trip from Savannah to Dakar, Senegal, which required
flying to LaGuardia Airport in New York City and then transferring to John F.
Kennedy International Airport to catch their international flight. Ndiaye’s friend
arranged for Sambou—who worked as a taxi driver—to give them a ride from
LaGuardia to JFK. During that drive, Ndiaye and Sambou struck up a conversation,
in which Sambou told Ndiaye that he could help him with obtaining a taxi driver’s
license. Consequently, several weeks later, Ndiaye traveled to Atlanta, where Sambou
was currently living, and provided Sambou with his driver’s license, social-security
card, and records of his driving history for Sambou to make the required copies of
those documents for the taxi license application process. Ndiaye stayed at Sambou’s
residence that night and then returned home to Savannah the next day, taking all of
his original documents with him. And as promised, Sambou did in fact succeed in
helping Ndiaye obtain a taxi license.
1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
2
In the early morning hours of May 9, 2017, a Powder Springs police officer
initiated a traffic stop of a Chevrolet Suburban after observing the vehicle fail to dim
its headlights for oncoming traffic and maintain its lane of travel. After a second
officer arrived on the scene, the first officer approached the vehicle, at which point
the driver told him that his name was Moustapha Ndiaye. When the first officer asked
him if he still lived in Savannah, the driver initially claimed he did but then stated that
he currently lived in Douglasville and was returning home after visiting his daughter,
who was ill and hospitalized at Children’s Healthcare of Atlanta. And when
questioned further by that officer about the registration for the vehicle he was driving,
which did not match the name provided, the driver responded that it belonged to
Moussa Sambou, whom he claimed was a friend of his father. Ultimately, the first
officer issued the driver a traffic citation, using the background information the driver
provided, and informed the driver of the date he would need to appear in court if he
wanted to contest the traffic charges rather than pay the fine.
A little over one month later, Ndiaye received a letter from the Powder Springs
Municipal Court informing him that he missed his scheduled court date and that his
driver’s license would be suspended if he failed to pay the fine for the traffic citation
issued to him on May 9, 2017. Needless to say, Ndiaye was confused by this letter
3
because he had never been to Powder Springs and certainly had not been there on the
date in question. He was also, understandably, alarmed that his driver’s license was
being threatened with suspension, and that his wife now harbored suspicions he had
been traveling to the Atlanta area without her knowledge. As a result, Ndiaye
immediately contacted the Powder Springs Police Department and scheduled an in-
person meeting with an officer to try to resolve the matter. So, on July 26, 2017,
Ndiaye and his wife traveled to Powder Springs and met with an officer to discuss the
traffic citation. And during the meeting, Ndiaye explained to the officer that he did
not own or drive the Chevrolet Suburban described in the citation. Additionally, after
reviewing the video from the body camera of the officer who initiated the traffic stop
and issued the citation, Ndiaye informed the interviewing officer that the driver was
his friend, Mamadou Sambou, and that he had never given him permission to use his
personal information to create a fraudulent driver’s license.
Agreeing that the driver in the video did not appear to be Ndiaye, the officer
turned the matter over to one of the department’s detectives, who also met with
Ndiaye to get information about Sambou. Then, using that information, the detective
began conducting online research to determine if she could locate Sambou’s current
address. And shortly thereafter, the detective matched Sambou’s name with a New
4
York address and, later, with a Florida driver’s license, which had a photograph
matching the license provided to the Powder Springs officer at the time of the traffic
stop. And using a phone number associated with that driver’s license, the detective
found a picture of Sambou on Facebook and several addresses, including the
Douglasville address mentioned during the traffic stop. All the photographs of
Sambou the detective discovered appeared to match the individual shown in the
officer’s body-cam video. In addition, the detective determined that the vehicle noted
in the traffic citation was owned by Sambou’s father.
Eventually, the State charged Sambou, via accusation, with one count of
identity fraud and one count of forgery in the first degree. And prior to trial, the State
filed a notice of intent to offer evidence in aggravation of punishment and another
notice of intent to present evidence of prior bad acts, both of which were based on,
inter alia, Sambou’s conviction in the State of New York for the felony offense of
offering a false instrument for filing in the first degree. Sambou opposed the prior bad
acts evidence, but following a pretrial hearing, the trial court ruled to admit the
evidence.
The case then proceeded to trial, during which the State presented the
foregoing evidence and played the video of the traffic stop recorded by the officer’s
5
body cam. In addition, an investigator with the New York Department of Motor
Vehicles testified for the State as to Sambou’s prior bad acts. Then, after the State
rested, Sambou’s wife testified in his defense, claiming that she and her husband were
in New York around the time of the Powder Springs traffic stop. Nevertheless, at the
conclusion of the trial, the jury found Sambou guilty as charged. And following a
sentencing hearing, the trial court sentenced Sambou as a recidivist based on the prior
felony conviction in New York.
Subsequently, Sambou 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 then held a hearing on the matter, during which Sambou’s trial counsel
testified regarding his representation. And after both Sambou and the State presented
their arguments, the trial court denied the motion. This appeal follows.
1. Sambou contends that the State failed to present sufficient evidence to
support his conviction on the charge of forgery in the first degree. We disagree.
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
6
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 The jury’s verdict will be upheld, then, so “long as there
is some competent evidence, even though contradicted, to support each fact necessary
to make out the State’s case.”4 Bearing these guiding principles in mind, we turn to
Sambou’s specific challenge to the sufficiency of the evidence supporting his first-
degree forgery conviction.
OCGA § 16-9-1 (b) provides:
A person commits the offense of forgery in the first degree when
with the intent to defraud he or she knowingly makes, alters, or
possesses any writing, other than a check, in a fictitious name or in such
2
See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010) (noting
that following conviction, an appellant no longer enjoys a presumption of innocence).
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) (noting the relevant question is, after viewing the evidence in the
light most favorable to the prosecution, could any rational jury found the essential
elements of the crime beyond a reasonable doubt).
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).
7
manner that the writing as made or altered purports to have been made
by another person, at another time, with different provisions, or by
authority of one who did not give such authority and utters or delivers
such writing.
And in this case, the accusation charged Sambou with first-degree forgery by alleging
that he “on or about the 9th day of May, 2017, with intent to defraud, did knowingly
possess a driver’s license . . . in the fictitious name of Moustapha Ndiaye, and did
utter and deliver said writing. . . .” Indeed, the State presented evidence that when
stopped for traffic violations, Sambou provided the Powder Springs police officer
with a driver’s license bearing his own photograph but Moustapha Ndiaye’s name and
Savannah address. The State also proffered evidence that although Ndiaye provided
Sambou with a copy of his driver’s license so that Sambou could help him obtain a
license to operate a taxi, he did not give Sambou permission to use it for his own
duplicitous purposes or know that he would do so.
Nevertheless, Sambou makes much of the Powder Springs police officer—who
initiated the traffic stop—not testifying at trial, arguing the State failed to present
evidence that he actually delivered the fictitious driver’s license to anyone, as
required by the forgery statute. But a criminal conviction may be based upon
circumstantial evidence if “the proved facts are not only consistent with the
8
hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the
accused.”5 Indeed, when the evidence meets this test, circumstantial evidence is “as
probative as direct evidence, and whether this burden has been met is a question for
the jury.”6 And importantly, when the jury is authorized to find that the evidence,
though circumstantial, excluded every reasonable hypothesis except the defendant’s
guilt, “the verdict will not be disturbed unless the verdict is insupportable as a matter
of law.”7 Finally, although circumstantial evidence must exclude every other
reasonable hypothesis but the defendant’s guilt, the evidence “need not exclude every
inference or hypothesis.”8
5
Elkins v. State, 350 Ga. App. 816, 819 (1) (830 SE2d 345) (2019)
(punctuation omitted); accord Johnson v. State, 291 Ga. App. 253, 254 (661 SE2d
642) (2008); see also OCGA § 24-14-6 (“To warrant a conviction on circumstantial
evidence, the proved facts shall not only be consistent with the hypothesis of guilt,
but shall exclude every other reasonable hypothesis save that of the guilt of the
accused.”).
6
Elkins, 350 Ga. App. at 819 (1) (punctuation omitted); accord Johnson, 291
Ga. App. at 254.
7
Elkins, 350 Ga. App. at 819 (1) (punctuation omitted); accord Johnson, 291
Ga. App. at 254.
8
Elkins, 350 Ga. App. at 819-20 (1) (punctuation omitted); accord Johnson,
291 Ga. App. at 254.
9
In this matter, the video from the body cam of the officer initiating the traffic
stop appears to show Sambou hand something to the officer after he approaches the
vehicle and, later, shows the officer hand something back to him. Additionally, during
this interaction, the officer asks Sambou if he still lives in Savannah and, ultimately,
Ndiaye received the letter from the Powder Springs Municipal Court warning him that
his driver’s license was about to be suspended at his Savannah address, both of which
constitute evidence that Sambou delivered the forged driver’s license to the officer
during the traffic stop. Furthermore, at trial, the second officer—who assisted with
the traffic stop—testified as to how traffic citations are generated, and implicit in his
testimony was that the issuing officer uses information from the driver’s license to
generate the citation. Given these circumstances, the State presented sufficient
evidence to support Sambou’s conviction on the charge of forgery in the first degree.9
9
See Smith v. State, 319 Ga. App. 164, 164-66 (1) (735 SE2d 153) (2012)
(holding that evidence defendant identified herself and signed Miranda form with her
sister’s name when questioned by police following serious motor vehicle accident
was sufficient to support defendant’s conviction for forgery in the first degree);
Bryant v. State, 286 Ga. App. 493, 496-97 (1) (d) (649 SE2d 597) (2007) (finding that
evidence was sufficient to support conviction for forgery when, in custody, defendant
signed a name on waiver-of-rights form that was not his actual name). Although
Sambou has not challenged the sufficiency of the evidence supporting his conviction
on the charge of identity fraud, we reviewed the record and find the evidence
sufficient to enable a jury to conclude beyond a reasonable doubt that he was guilty
of that crime. See Jackson, 443 U.S. at 319 (III) (B) (“Once a defendant has been
10
2. Sambou also contends that the trial court erred in sentencing him as a
recidivist under OCGA § 17-10-7 (a) based on a prior conviction in New York.
Again, we disagree.
In the context of a criminal conviction, “a sentence is void if the court imposes
punishment that the law does not allow.”10 And such a sentence “may be vacated at
any time in any court where it becomes material to the interest of the parties to
consider it.”11 Moreover, this is true even for defendants who plead guilty because “a
defendant who knowingly enters into a plea agreement does not waive the right to
challenge an illegal and void sentence.”12 Importantly, whether a defendant was
found guilty of the crime charged, the factfinder’s role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is
to be considered in the light most favorable to the prosecution.”).
10
von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013)
(punctuation omitted); accord Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804)
(2010).
11
Little v. State, 327 Ga. App. 252, 253 (758 SE2d 133) (2014) (punctuation
omitted).
12
Bell v. State, 294 Ga. 5, 8 (2) (749 SE2d 660) (2013); accord Nazario v.
State, 293 Ga. 480, 487 (2) (c) (746 SE2d 109) (2013) (noting that a guilty plea does
not waive a challenge to an illegal sentence); see also Humphrey v. State, 297 Ga.
349, 350 (773 SE2d 760) (2015) (“[A]s we have indicated in a number of cases, the
consent of the parties cannot validate a void sentence.”).
11
properly sentenced as a recidivist under OCGA § 17-10-7 is “subject to de novo
review.”13
Turning to the section of that statute applicable here, OCGA § 17-10-7 (a)
provides:
Except as otherwise provided in subsection (b) or (b.1) of this Code
section, any person who, after having been convicted of a felony offense
in this state or having been convicted under the laws of any other state
or of the United States of a crime which if committed within this state
would be a felony and sentenced to confinement in a penal institution,
commits a felony punishable by confinement in a penal institution shall
be sentenced to undergo the longest period of time prescribed for the
punishment of the subsequent offense of which he or she stands
convicted, provided that, unless otherwise provided by law, the trial
judge may, in his or her discretion, probate or suspend the maximum
sentence prescribed for the offense.
13
Frey v. State, 338 Ga. App. 583, 586 (3) (790 SE2d 835) (2016); see Mathis
v. State, 336 Ga. App. 257, 257 (784 SE2d 98) (2016) (holding that because appeal
regarding whether defendant was properly sentenced as a recidivist is a question of
law, we review the trial court’s decision de novo).
12
Simply put, this statute “imposes maximum sentences for any person convicted of a
felony who was previously convicted under the laws of any other state of a crime
which if committed within this state would be a felony.”14
Here, in his initial brief, Sambou argued that the trial court erred in sentencing
him as a recidivist because the State failed to show that he was represented by counsel
when he pleaded guilty to the offense in New York. And indeed, he is correct that
“[i]n recidivist sentencing, the State bears the burden of showing both the existence
of the prior guilty pleas and that the defendant was represented by counsel when he
entered the pleas.”15 But Georgia’s appellate courts have also “held that a defendant
can waive a claim that such a prior conviction is invalid because the defendant was
14
Nelson v. State, 277 Ga. App. 92, 99 (5) (625 SE2d 465) (2005) (punctuation
omitted), disapproved of on other grounds by Nordahl v. State, 306 Ga. 15 (829 SE2d
99) (2019); see Johnson v. State, 281 Ga. App. 7, 10 (4) (635 SE2d 278) (2006)
(noting that OCGA § 17-10-7 (a) generally provides that a person convicted in
Georgia of a felony punishable by confinement in a penal institution must receive the
maximum sentence provided for such offense if he or she was previously convicted
under the laws of another state “of a crime which if committed within this state would
be a felony” (punctuation omitted); Woodson v. State, 242 Ga. App. 67, 70 (4) (530
SE2d 2) (2000) (same), disapproved of on other grounds by Nordahl, 306 Ga. 15.
15
Bell v. State, 328 Ga. App. 813, 813 (762 SE2d 827) (2014).
13
denied the assistance of counsel in connection with the conviction.”16 This is such a
case. Sambou raised no objection to the introduction of his prior felony conviction,
and his trial counsel acknowledged the existence of that conviction during the
sentencing hearing. As a result, Sambou has waived this specific argument for
appeal.17
In his reply brief to this Court, Sambou changes tack and instead argues that
the trial court erred in sentencing him as a recidivist because the State failed to
establish that his prior New York conviction was a crime, which, if committed in
16
von Thomas, 293 Ga. at 573 (2); see Hampton v. State, 289 Ga. 621, 627 (6)
(713 SE2d 851) (2011) (“[W]hile [defendant] objected to the court’s consideration
of [prior] uncounseled pleas [in aggravation of punishment], he did not obtain a
ruling on his objection and therefore failed to preserve the issue for appeal.”
(punctuation omitted)), disapproved of on other grounds by Nalls v. State, 304 Ga.
168 (815 SE2d 38) (2018); Rucker v. State, 304 Ga. App. 184, 188 (2) (b) (ii) (695
SE2d 711) (2010) (holding that defendant in sentencing hearing failed to specify
grounds for objecting to admission of prior battery and nuisance convictions, and thus
waived for appeal issue of whether prior convictions could be used in aggravation of
punishment and for recidivist treatment).
17
See Hampton, 289 Ga. at 627 (6) (“[W]hile [defendant] objected to the
court’s consideration of [prior] uncounseled pleas [in aggravation of punishment], he
did not obtain a ruling on his objection and therefore failed to preserve the issue for
appeal.” (punctuation omitted)); Rucker, 304 Ga. App. at 188 (2) (b) (ii) (holding that
defendant in sentencing hearing failed to specify grounds for objecting to admission
of prior battery and nuisance convictions, and thus waived for appeal issue of whether
prior convictions could be used in aggravation of punishment and for recidivist
treatment).
14
Georgia, would be considered a felony.18 But although this argument raises a
cognizable void sentence claim, which we will review despite his failure to object to
the use of his prior conviction,19 we nonetheless disagree.
Recently, the Supreme Court of Georgia set forth the proper analysis for
determining “whether a[n] . . . out-of-state conviction qualifies as a predicate
18
Sambou did not raise this argument in his initial brief or during the hearing
on his motion for new trial, and, as a general rule, “[a]n appellant who raises an
argument for the first time in a reply brief is not entitled to have that argument
considered.” City of Atlanta v. Mays, 301 Ga. 367, 372, 801 SE2d 1, 5 (2017). Even
so, Sambou did cursorily assert it in his amended motion for new trial, and given that
an unlawful sentence can be challenged at any time, we shall address this issue here.
See supra note 11.
19
See Butler v. State, 354 Ga. App. 473, 480 (4) (841 SE2d 162) (2020)
(finding that defendant raised cognizable void sentence claim regarding use of prior
convictions to impose recidivist sentence, despite defendant’s failure to object in trial
court, when defendant did not challenge existence or validity of his prior convictions,
but instead alleged prior convictions did not constitute felonies in Georgia); Parham
v. State, 342 Ga. App. 754, 756 (1) n.1 (805 SE2d 264) (2017) (addressing
defendant’s claim that the trial court erred by sentencing him under the general
recidivist statute rather than the more specific recidivist statute applicable to his
convictions, holding that his claim raised a “cognizable” claim that his sentence was
void even though he did not object to the imposition of a recidivist sentence in the
trial court).
15
conviction under [OCGA § 17-10-7 (a)].”20 Applying that analysis, a reviewing court
must
identify the [out-of-state] crime used to enhance [the defendant’s]
sentence under OCGA § 17-10-7 . . . [(a)], consider whether the crime
is divisible, and then parse the crime’s elements using the “formal
categorical” or “modified categorical” approach. . . . After establishing
the elements of the [out-of-state] predicate conviction, [it should]
determine whether those elements would describe a felony under
Georgia law.21
More specifically, when the out-of-state or federal offense “sets out a single (or
‘indivisible’) set of elements to define a single crime[,]” the sentencing court “lines
up that crime’s elements alongside those of the [state] offense and sees if they
match.”22 And as alluded to supra, “[t]his comparison of statutory elements is what
the federal courts refer to as the ‘formal categorical’ approach.”23 In contrast, the
20
Nordahl v. State, 306 Ga. 15, 18 (1) (829 SE2d 99) (2019) (punctuation
omitted); accord Butler, 354 Ga. App. at 480 (4).
21
Nordahl, 306 Ga. at 24 (4) (punctuation omitted); accord Butler, 354 Ga.
App. at 481 (4).
22
Nordahl, 306 Ga. at 23 (3) (punctuation omitted); accord Mathis v. United
States, 579 U.S. ___, (I) (A) (136 SCt 2243, 2248, 195 LE2d 604) (2016).
23
Nordahl, 306 Ga. at 23 (3); see, e.g., Taylor v. United States, 495 U. S. 575,
600 (IV) (110 SCt 2143, 109 LE2d 607) (1990).
16
“modified categorical” approach is applicable when a sentencing court is “confronted
with a prior conviction for violating a statute that sets forth multiple crimes and is,
thus, ‘divisible.’”24 For this narrow range of cases, “sentencing courts would need to
look beyond the statutory elements of the crime to the charging paper and jury
instructions used in a case.”25
Here, in support of its request to have Sambou sentenced under OCGA § 17-
10-7 (a), the State presented evidence that he pleaded guilty in the State of New York
in 2016 to the felony offense of offering a false instrument for filing in the first
degree, which is committed when a person
knowing that a written instrument contains a false statement or false
information, and with intent to defraud the state or any political
subdivision, public authority or public benefit corporation of the state,
he or she offers or presents it to a public office, public servant, public
authority or public benefit corporation with the knowledge or belief that
it will be filed with, registered or recorded in or otherwise become a part
of the records of such public office, public servant, public authority or
public benefit corporation . . . .26
24
Nordahl, 306 Ga. at 23 (3) (punctuation omitted); accord Taylor, 495 U. S.
at 602 (IV).
25
Nordahl, 306 Ga. at 23 (3) (punctuation omitted).
26
N.Y. Penal Law § 173.35 (1) (McKinney).
17
This statute is not divisible, and, therefore, we apply the “formal categorical”
approach to determine if it matches a felony offense under Georgia law.27 And a
comparison of the elements shows that the Georgia felony that the New York offense
of offering a false instrument for filing most closely resembles is OCGA § 16-10-20,
which punishes false statements and writings and provides:
A person who knowingly and willfully falsifies, conceals, or covers up
by any trick, scheme, or device a material fact; makes a false, fictitious,
or fraudulent statement or representation; or makes or uses any false
writing or document, knowing the same to contain any false, fictitious,
or fraudulent statement or entry, in any matter within the jurisdiction of
any department or agency of state government or of the government of
any county, city, or other political subdivision of this state shall, upon
conviction thereof, be punished by a fine of not more than $1,000.00 or
by imprisonment for not less than one nor more than five years, or both.
Indeed, both offenses punish using a writing or document that one knows contains
false information for purposes connected to a government-related entity’s interest in
such document. Sambou nonetheless argues that the offenses are not comparable
because the Georgia offense includes a willfulness requirement that the New York
27
See, e.g., Nordahl, 306 Ga. at 23 (3); see also United States v. Edwards, 836
F3d 831, 833 (7th Cir. 2016) (Sykes, J.) (“The Supreme Court recently clarified that
a statute is considered divisible only if it creates multiple offenses by setting forth
alternative elements.”).
18
offense lacks. But a plain reading of the New York statute demonstrates that the
offense is committed when a person both knows that the writing contains a falsehood
and offers it “with intent to defraud.” Thus, the elements of offering a false
instrument for filing in the first degree satisfy the statutory definition of a felony
under Georgia law.28 Accordingly, the trial court did not err in sentencing Sambou as
a recidivist under OCGA § 17-10-7 (a).
3. Sambou further contends that the trial court erred in failing to apply the rule
of lenity by sentencing him for the felony of identity fraud rather than the
misdemeanor of giving a false name to a law enforcement officer. Yet again, we
disagree.
The Supreme Court of the United States has referred to the rule of lenity “as
a sort of junior version of the vagueness doctrine,” which requires fair warning as to
what conduct is proscribed.29 And as this Court has previously explained, the rule of
28
See Nordahl, 306 Ga. at 23 (3) (explaining that in applying the “formal
categorical” approach to recidivist sentencing, “the sentencing court lines up [the out
of state] crime’s elements alongside those of the [state] offense and sees if they
match.” (punctuation omitted)).
29
United States v. Lanier 520 U.S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432)
(1997) (punctuation omitted); accord McNair v. State, 293 Ga. 282, 283 (745 SE2d
646) (2013).
19
lenity “ensures that if and when an ambiguity exists in one or more statutes, such that
the law exacts varying degrees of punishment for the same offense, the ambiguity will
be resolved in favor of a defendant, who will then receive the lesser punishment.”30
But the rule of lenity comes into play “only to resolve ambiguities that remain after
applying all other tools of statutory construction.”31
OCGA § 16-9-121 (a) (1) provides that “[a] person commits the offense of
identity fraud when he or she willfully and fraudulently . . . without authorization or
consent, uses or possesses with intent to fraudulently use identifying information
concerning a person. . . .” In contrast, giving a false name to a law enforcement
officer is defined by OCGA § 16-10-25, which provides: “[a] person who gives a
false name, address, or date of birth to a law enforcement officer in the lawful
30
Gordon v. State, 334 Ga. App. 633, 634 (780 SE2d 376) (2015) (punctuation
omitted); see McNair v. State, 293 Ga. 282, 283 (745 SE2d 646) (2013) (noting that
the rule of lenity provides that statutory ambiguity is resolved in favor of the
defendant, who will then receive the lesser punishment); Issa v. State, 340 Ga. App.
327, 341 (7) (796 SE2d 725) (2017) (same); Mathis v. State, 336 Ga. App. 257, 260
(784 SE2d 98) (2016) (same).
31
State v. Nankervis, 295 Ga. 406, 409 (2) (761 SE2d 1) (2014) (punctuation
omitted); see Woods v. State, 279 Ga. 28, 31 (3) (608 SE2d 631) (2005) (holding that
when a crime is penalized by a special law, the general provisions of the penal code
are not applicable); McWhorter v. State, 275 Ga. App. 624, 629 (2) (621 SE2d 571)
(2005) (same).
20
discharge of his official duties with the intent of misleading the officer as to his
identity or birthdate is guilty of a misdemeanor.”
Sambou’s argument notwithstanding, the two statutes are not coextensive.
Identity fraud requires the intentional fraudulent use of, or possession with intent to
use, some sort of identifying information of another person without that person’s
consent. But giving a false name is both broader and narrower than the offense of
identity fraud.32 Specifically, “[i]t is broader in that it covers any ‘giving’ of a false
name, which includes both oral and written forms of a false name.”33 But it is
“narrower in that the name must be given to a law enforcement officer in the lawful
discharge of his official duties . . . .”34 Importantly, while these offenses “may share
common elements, each offense has elements that are not included in the other.”35
And here, the State charged Sambou with identity fraud by alleging that he “without
authorization and consent, did willfully and fraudulently, use identifying information
32
See Quaweay v. State, 274 Ga. App. 657, 658 (618 SE2d 707) (2005)
(explaining that giving a false name is both broader and narrower than the crime of
forgery).
33
Id. (punctuation omitted).
34
Id. (punctuation omitted).
35
Id.21
of Moustapha Ndiaye, to wit: said accused used victim’s name during a traffic stop
. . . .” The State was required, then, to prove that Sambou fraudulently used Ndiaye’s
identifying information without his consent, neither of which would have been
required to prove giving a false name to a law enforcement officer. Accordingly, the
trial court did not err by declining to apply the rule of lenity.36
4. Finally, Sambou contends that the trial court erred in denying his claim that
his counsel rendered ineffective assistance by failing to object to testimony that
constituted hearsay and violated his Sixth Amendment right to confrontation.37 Once
again, we disagree.
To evaluate Sambou’s claim of ineffective assistance of counsel, we apply the
two-pronged test established in Strickland v. Washington,38 which requires him to
36
Cf. id. (holding that rule of lenity did not apply to reduce defendant’s
convictions for felony first-degree forgery to misdemeanors of giving false name to
law enforcement officer, even though defendant had signed driver’s license and
signed four documents with false name that he provided to officer because
prosecution required different evidence to prove giving false name and forgery).
37
See U.S. CONST. AMEND. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him . . . .”); see also
GA. CONST. ART. 1, § 1, ¶ XIV (“Every person charged with an offense against the
laws of this state . . . shall be confronted with the witnesses testifying against such
person.”).
38
466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
22
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.”39 Importantly,
should a defendant “fail to meet his burden on one prong of this two-prong test, we
need not review the other prong.”40 In addition, 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.41 In fact, the
reasonableness of counsel’s conduct is “examined from counsel’s perspective at the
time of trial and under the particular circumstances of the case[.]”42 And decisions
regarding trial tactics and strategy may form the basis for an ineffectiveness claim
only if “they were so patently unreasonable that no competent attorney would have
39
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).
40
McAllister v. State, 351 Ga. App. 76, 93 (6) (830 SE2d 443) (2019); accord
Gomez v. State, 300 Ga. 571, 573 (797 SE2d 478) (2017).
41
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)).
42
Lockhart v. State, 298 Ga. 384, 385 (2) (782 SE2d 245) (2016).
23
followed such a course.”43 Moreover, 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.”44
Here, prior to trial, the State filed a notice of intent to present evidence of prior
bad acts, under Rule 404 (b),45 which consisted of similar crimes in New York,
including the felony offense of offering a false instrument for filing in the first
degree. And following a hearing, the trial court ruled the evidence admissible. Then,
at trial, the State called an investigator with the New York Department of Motor
Vehicles as a witness, who testified as to Sambou’s prior bad acts. Specifically, the
43
Id.44
Sowell v. State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014); accord
Duncan v. State, 346 Ga. App. 777, 783 (2) (815 SE2d 294) (2018); see Grant v.
State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014) (holding that “[i]n reviewing a
claim of ineffective assistance, we give deference to the trial court’s factual findings
and credibility determinations unless clearly erroneous, but we review a trial court’s
legal conclusions de novo”).
45
See OCGA § 24-4-404 (b) (“Evidence of other crimes, wrongs, or acts shall
not be admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .”).
24
investigator testified that in 2014, Sambou used a work acquaintance’s identification
to purchase a vehicle and that the dealership, in fact, had records indicating the
purchased vehicle was registered to the acquaintance. The investigator added—with
no objection from Sambou’s trial counsel—that during an interview, the acquaintance
explained that he did not give Sambou permission to use his identification. Next, the
investigator testified regarding another incident, in which Sambou used his brother’s
identifying information to create a fraudulent driver’s license for himself. And as was
the case with the first victim, the investigator testified—again without objection—that
Sambou’s brother similarly asserted in an interview that he had not given Sambou
permission to use his identification.
At the hearing on his motion for new trial, Sambou’s current counsel
questioned trial counsel as to why he failed to object to the above-referenced
evidence, particularly the investigator’s testimony regarding what the New York
victims told him. Trial counsel responded that he believed his initial objection to the
State’s request to present prior bad acts evidence preserved this challenge. But on
appeal, Sambou argues his trial counsel rendered ineffective assistance by failing to
object to the New York investigator’s testimony, which he alleges constituted hearsay
25
and violated his Confrontation Clause rights.46 He further contends that trial counsel’s
explanation for this failure demonstrates counsel’s inability to distinguish between
challenging the 404 (b) evidence generally and the impermissible manner in which
the investigator conveyed that evidence at trial, rather than any cogent litigation
strategy.
But setting aside whether trial counsel’s failure to object constituted deficient
performance, Sambou has not shown “that counsel’s errors were so serious that they
likely affected the outcome of the trial.”47 Indeed, satisfaction of this test is “a
difficult endeavor.”48 And simply because a defendant has shown that his trial counsel
performed deficiently “does not lead to an automatic conclusion that [he] was
prejudiced by counsel’s deficient performance.”49 Indeed, the State presented
46
See generally Jones v. State, 350 Ga. App. 618, 625-26 (3) (a) (829 SE2d
820) (2019) (holding that trial counsel’s failure to object to investigator’s testimony
on basis that it violated defendant’s confrontation clause right was deficient
performance).
47
Brown v. State, 307 Ga. 24, 33 (6) (834 SE2d 40) (2019) (punctuation
omitted); accord Jones v. State, 305 Ga. 750, 755 (4) (827 SE2d 879) (2019).
48
Brown, 307 Ga. at 33 (6) (punctuation omitted); accord Davis v. State, 306
Ga. 140, 144 (3) (829 SE2d 321) (2019).
49
Brown, 307 Ga. at 33 (6) (punctuation omitted); accord Davis, 306 Ga. at
144 (3).
26
evidence that a Powder Springs police officer stopped Sambou for a traffic violation
and that Sambou provided the officer with identification indicting that he was
Moustapha Ndiaye. Furthermore, Ndiaye testified that he knew Sambou and that he
provided him with copies of his driver’s license and other documents so that Sambou
could assist him in obtaining a taxi driver’s license. And in addition to identifying
Sambou as the person depicted in the video from the body cam of the police officer
who initiated the traffic stop, Ndiaye also testified that he did not give Sambou
permission to use his driver’s license in such a manner. Given these circumstances,
the evidence supporting Sambou’s convictions was quite substantial, and, therefore,
he has failed to demonstrate a reasonable probability that, but for his counsel’s
alleged deficiency, the trial would have resulted in a different outcome.50
50
Newman v. State, 309 Ga. 171, 183-84 (2) (i) (844 SE2d 775) (2020)
(concluding that even if trial counsel rendered deficient performance in failing to
object to defendant’s three prior convictions, in light of overwhelming evidence of
guilt, defendant could not show prejudice); Brown, 307 Ga. at 33 (6) (a) (holding that
even if trial counsel performed deficiently by failing to object when investigator’s
testimony amounted to improper character evidence, defendant failed to prove
requisite prejudice for claim of ineffective assistance of counsel, given overwhelming
evidence of defendant’s guilt); Scales v. State, 356 Ga. App. 164, 167-68 (2) (a) (846
SE2d 418) (2020) (finding that, given overwhelming evidence, any error by defense
counsel in failing to object to the State improperly placing defendant’s character into
evidence did not prejudice defendant, and thus, could not amount to ineffective
assistance).
27
Accordingly, the trial court did not err in denying his claim of ineffective assistance
of counsel.
For all these reasons, we affirm Sambou’s convictions and the denial of his
motion for new trial.
Judgment affirmed. Rickman, P. J., and Brown, J., concur.
28