Gipson v. the State , 332 Ga. App. 309 ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY, and MCMILLIAN, 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/
May 6, 2015
In the Court of Appeals of Georgia
A15A0155. GIPSON v. THE STATE.
BARNES, Presiding Judge.
A jury found Jay Adam Gipson guilty of aggravated assault with an offensive
weapon, aggravated assault with intent to murder, aggravated battery, and battery.
The trial court thereafter denied his motion for new trial. On appeal, Gipson argues
that there was insufficient evidence to convict him of aggravated assault with intent
to murder and that the count of the indictment for that offense was fatally defective.
Gipson further argues that the trial court erred in allowing expert testimony regarding
the typical characteristics of domestic abuse victims and the cyclical nature of
domestic abuse; in allowing the State to cross-examine Gipson about a religious
emblem he was wearing; in its charge to the jury on aggravated battery; in its
recharge to the jury on the definition of “intent to kill”; and in failing to merge his
convictions for aggravated assault with intent to murder and battery into his
conviction for aggravated assault with an offensive weapon. Lastly, Gipson argues
that his trial counsel rendered ineffective assistance in several respects. For the
reasons discussed below, we affirm.
On appeal after a criminal conviction, the defendant is no longer presumed
innocent, and we view the evidence in the light most favorable to the verdict. Anthony
v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed
that Gipson and the victim were involved in a tumultuous relationship lasting over
a year. During that time period, Gipson violently attacked and injured the victim
several times when the two argued. On one occasion in September 2012, Gipson
grabbed the legs of the chair in which the victim was sitting and pulled the legs
toward him, causing the victim to fall backward and fracture one of her vertebrae. The
victim went to the hospital several times for treatment for the back injury she
sustained.
Subsequently, on the morning of April 9, 2013, Gipson and the victim were
walking to the house of some friends when they began to argue. Gipson suggested
that they take a short cut to their friends’ house by walking down a path through the
woods. Although the victim was apprehensive of walking down the secluded path
with Gipson, she agreed to do so. As they proceeded down the path, Gipson suddenly
began beating, kicking, and pushing the victim, causing her to fall to the ground.
2
Once the victim was on the ground, Gipson repeatedly kicked her and struck her with
several tree limbs lying near the path. Gipson would strike the victim with a tree limb
until it broke, and then would pick up another one and begin striking her with it.
When Gipson ultimately stopped beating the victim, she was barely able to walk but
managed to follow him out of the woods to their friends’ house.
When Gipson and the victim arrived at their friends’ house, one of their friends
opened the front door, saw the victim’s condition, and was “shocked.” The friend
later testified that the victim was severely swollen and bruised and looked like she
had been “beat[en] up.” The friend took the victim to the hospital, where she was
treated for the swelling and the severe bruises on her arms, legs, and back. The victim
was released from the hospital later that day, but was so sore that she stayed in bed
for two weeks to recover. One of the bruises left a permanent scar on her arm.
The emergency room physician who treated the victim later testified that the
victim’s bruises on her arms, legs, and back were some of the worst he had ever seen
in his seventeen years of experience. The physician ordered an ultrasound of the
victim’s bruised left arm because it was”so huge and swollen,” and he was concerned
that the bruising might be compressing a deep vein and lead to a blood clot, which
could become dislodged and result in a fatal pulmonary embolism. The ultrasound
3
was negative for a blood clot, but the physician believed the victim needed follow-up
treatment because of the severity of the injury. The physician also testified that in his
years of practicing emergency medicine and evaluating assault victims, he had never
ordered a CPK test, which measures muscle breakdown to determine if there is a risk
of kidney damage, but he chose to do so in this case because of the severity of the
victim’s bruising. The results of the testing showed that the victim’s CPK level was
elevated, although not to the point where her kidneys were in danger. Lastly, the
physician testified that victim’s injuries were consistent with someone receiving a
severe beating with a tree limb or being kicked hard.
Based on Gipson’s attack of the victim on the wooded path on April 9, 2013,
Gipson was indicted on charges of aggravated assault with an offensive weapon
(Count 1), battery (Count 2), and aggravated assault with intent to murder (Count 3).
Gipson also was indicted for aggravated battery (Count 5) based on the September
2012 incident when he caused the victim to fall from a chair and fracture one of her
vertebrae.1
1
Gipson was indicted for theft by taking (Count 4) and another count of battery
(Count 6), but the jury acquitted him of theft by taking, and the trial court directed a
verdict of acquittal on the battery count.
4
At the ensuing jury trial, the victim described the attacks that formed the basis
for the charges in the indictment. The victim also testified to prior difficulties
between her and Gipson, including an incident when Gipson beat the victim with a
metal ladder and a silver chain necklace, resulting in multiple abrasions and bruises,
and another incident when he bruised the victim’s ribs by kicking her. Among other
witnesses, the State also called the victim’s friend who took her to the hospital after
the April 9th attack on the wooded path, the emergency room physician who treated
her after the attack, and the executive director of a domestic violence shelter who
provided expert testimony regarding the typical characteristics of domestic abuse
victims and the cycle of domestic abuse. The State also introduced photographs of the
extensive bruising suffered by the victim as a result of the April 9th attack. After the
State rested, Gipson elected to testify in his own defense and denied having ever
physically attacked the victim.
After hearing all the evidence, the jury found Gipson guilty under Counts 1-3
and 5 of the indictment. The trial court declined to merge any of the offenses and
sentenced Gipson to a total of 40 years, with the first 15 years served in confinement
and the remainder on probation. Gipson filed a motion for new trial, asserting, among
other things, that his trial counsel rendered ineffective assistance of counsel. After
5
conducting an evidentiary hearing where Gipson’s trial counsel testified, the trial
court denied the motion for new trial, resulting in this appeal.
1. Gipson challenges the sufficiency of the evidence only as to Count 3 of the
indictment, which charged him with aggravated assault with intent to murder based
on the April 9, 2013 attack of the victim on the wooded path. Gipson does not contest
that there was evidence that he assaulted the victim; rather, he maintains that there
was insufficient evidence for a jury to find that he acted with the intent to kill her. We
are unpersuaded.
In addressing a challenge to the sufficiency of the evidence, we do not weigh
the evidence, resolve conflicts in the testimony, or evaluate the credibility of the
witnesses. Rollins v. State, 318 Ga. App. 311 (733 SE2d 841) (2012). Instead, we ask
only whether the evidence was sufficient to prove each element of the charged crime
beyond a reasonable doubt, and “[a]s long as there is some competent evidence, even
though contradicted, to support each fact necessary to make out the [S]tate’s case, the
jury’s verdict will be upheld.” (Citation omitted.) Id. See Jackson v. Virginia, 443 U.
S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
To authorize a conviction for aggravated assault with intent to murder,
the State must show that the defendant acted with the deliberate intent
6
to kill at the time of the assault, which the jury may infer from the nature
of the instrument used in making the assault, the manner of its use, and
the nature of the wounds inflicted.
(Citation and punctuation omitted.) Grant v. State, 326 Ga. App. 121, 122 (1) (756
SE2d 255) (2014). See OCGA § 16-5-21 (a) (1);2 Tanner v. State, 86 Ga. App. 767(1) (72 SE2d 549) (1952). Intent may be inferred from all of the circumstances
surrounding the assault, Jordan v. State, 322 Ga. App. 252, 254 (2) (744 SE2d 447)
(2013), and the question whether the defendant acted with the requisite intent is
ordinarily for the jury to determine. Campbell v. State, 314 Ga. App. 299, 302 (724
SE2d 24) (2012).
The evidence in the present case, construed in favor of the State, showed that
Gipson lured the victim down a secluded path while arguing with her, where he
repeatedly kicked her and struck her with tree limbs. The victim could barely walk
after the attack, had to be taken to the emergency room at the hospital, and was
treated for bruising to her arms, legs, and back that was so severe that the treating
physician was concerned that she was at risk of a pulmonary embolism or kidney
2
OCGA § 16-5-21 was amended effective July 1, 2014. See Ga. L. 2014, pp.
432, 438, § 2-2; pp. 441, 445, 450, §§ 2, 3; and pp. 599, 622, § 3-1. Here, we apply
the prior version of the statute, Ga. L. 2011, p. 752, § 16, effective May 13, 2011.
7
damage. In light of these combined circumstances, we conclude that a reasonable jury
was entitled to find beyond a reasonable doubt that Gipson acted with the intent to
kill the victim and find him guilty of aggravated assault with intent to murder. See,
e.g., Tanner, 86 Ga. App. at 767 (1), (3) (throwing “some kind of blunt instrument
like a rock” at the victim, resulting in severe injury, supported inference that
defendant acted with intent to kill); Thomas v. State, 75 Ga. App. 334 (43 SE2d 352)
(1947) (striking victim with brass knuckles, resulting in severe injury, supported
inference that defendant acted with intent to kill).
2. Gipson also argues that Count 3 of the indictment was fatally defective
because it did not specify the deadly weapon used by Gipson during the attack of the
victim on the wooded path. But Gipson did not raise this issue in the trial court by a
timely general or special demurrer, or after trial by a timely motion in arrest of
judgment. “The failure to file a general or special demurrer, or a timely motion in
arrest of judgment, waives any claim that could have been raised in a general or
special demurrer. Accordingly, this enumeration presents nothing for review.”
(Punctuation and footnote omitted.) Walker v. State, 329 Ga. App. 369, 372-373 (2)
(765 SE2d 599) (2014).
8
In any event, we are unpersuaded by Gipson’s challenge to the indictment.
Count 3 of the indictment charged Gipson with aggravated assault with intent to
murder under the former version of OCGA § 16-5-21 (a) (1),3 not with aggravated
assault with a deadly weapon under subsection (a) (2). Aggravated assault with intent
to murder requires proof that the defendant committed a simple assault in one of the
two ways defined in OCGA § 16-5-20 (a)4 and acted with the intent to kill the victim.
See Guyse v. State, 286 Ga. 574, 576 (2) (690 SE2d 406) (2010) (discussing elements
of aggravated assault); Grant, 326 Ga. App. at 122 (1) (aggravated assault with intent
to murder requires proof of intent to kill at the time of the assault).
Count 3 alleged that on April 9, 2013, Gipson “did unlawfully then and there
make an assault upon the person of [the victim] with the intent to kill, contrary to the
laws of this State, the good order, peace and dignity thereof.” The State was not
required to specify the manner in which Gipson committed the simple assault upon
the victim; it was sufficient for the State to allege “the aggravating aspect of the
3
See supra footnote 2.
4
A defendant commits simple assault if he “[a]ttempts to commit a violent
injury to the person of another” or “[c]ommits an act which places another in
reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20
(a).
9
simple assault,” which was that Gipson acted with the intent to kill. Simpson v. State,
277 Ga. 356, 358 (3) (589 SE2d 90) (2003). Count 3 of the indictment was sufficient
to put Gipson on notice that he could be convicted of aggravated assault if he
committed a simple assault in either manner contained in the simple assault statute,
so long as the State proved that he did so with the intent to kill the victim. Gipson’s
claim that Count 3 was fatally defective is thus without merit.
3. Gipson argues that the trial court erred in allowing expert testimony from the
executive director of the domestic violence shelter regarding the typical
characteristics of domestic abuse victims and the cyclical pattern of domestic abuse.
According to Gipson, the executive director was not qualified to offer an opinion as
an expert on those topics and her testimony was irrelevant and impermissibly placed
his character in issue.
Gipson failed to object at trial to the expert qualifications of the executor
director or to any of her testimony. “Georgia has long followed the contemporaneous
objection rule, which provides that counsel must make a proper objection on the
record at the earliest possible time to preserve for review the point of error.” (Citation
and punctuation omitted.) Fraser v. State, 329 Ga. App. 1 (763 SE2d 359) (2014).
However, because the trial in this case occurred after January 1, 2013, Georgia’s new
10
evidence code applies. See Ga. Laws 2011, Act 52, § 101. Under the new code, we
“may review the purportedly improper testimony for plain error.” (Citation and
punctuation omitted.) Fraser, 329 Ga. App. at 2. See OCGA § 24-1-103 (d); Rembert
v. State, 324 Ga. App. 146, 152 (2), n. 8 (749 SE2d 744) (2013). To rise to the high
level of plain error, the error must be “one that is so clearly erroneous that it creates
a likelihood of a grave miscarriage of justice or seriously affects the fairness,
integrity, or public reputation of the judicial proceeding,” and the “appellant must
show that the error caused him harm, i.e., that the error likely affected the outcome
at trial.” (Footnote omitted.) Perez v. State, __ Ga. App. __ (1) (Case No. A14A1992,
decided March 13, 2015).
There was no error, much less plain error, in this case because the trial court
properly admitted the executive director’s expert testimony. As an initial matter, the
trial court acted within its discretion in qualifying the executive director as an expert
in matters pertaining to domestic violence.
To qualify as an expert, generally all that is required is that a person
must have been educated in a particular skill or profession; his special
knowledge may be derived from experience as well as study. Formal
education in the subject at hand is not a prerequisite for expert status.
The trial court’s ruling on this issue is reviewed only for abuse of
discretion.
11
(Citations and punctuation omitted.) Billings v. State, 293 Ga. 99, 104-105 (5) (745
SE2d 583) (2013). See United States v. Roach, 644 F.3d 763, 764 (8th Cir. 2011)
(expertise can be derived from “on-the-job observations and attendance at
conferences and seminars” because the federal rules of evidence do “not rank
academic training over demonstrated practical experience.”).5
The executive director of the domestic violence shelter testified that she has
been an advocate in the field of domestic violence for over thirteen years. She
testified that she obtained her Bachelor’s degree in psychology in 1996, has
specialized training in domestic violence, and receives a minimum of fifteen hours
of additional training and education in the field of domestic violence each year. The
executive director further testified that she has given presentations across the
community and worked at the state level to advocate on behalf of victims, form public
policy, and train others to assist victims, and currently serves as the Board
Chairperson for the Georgia Coalition Against Domestic Violence as well as for the
5
“Given the similarity between Georgia’s new evidence code and the Federal
Rules of Evidence it is proper that we give consideration and great weight to
constructions placed on the Federal Rules by the federal courts.” (Citation and
punctuation omitted.) Williams v. State, 328 Ga. App. 876, 879 (1), n.14 (763 SE2d
261) (2014).
12
Commission on Family Violence. Based on this testimony, the trial court acted well
within its discretion in qualifying the executive director as an expert. See Billings,
293 Ga. at 105 (5); Miller v. State, 273 Ga. App. 761, 764 (3) (615 SE2d 843) (2005).
Nor did the trial court err in permitting the executive director to testify about
the typical characteristics of domestic abuse victims and the cycle of domestic abuse.
“Expert testimony is admissible to explain the behavior of a domestic violence victim
who does not report abuse or leave the abuser.” (Footnote omitted.) Moorer v. State,
290 Ga. App. 216, 217 (1) (659 SE2d 422) (2008). When cross-examining the victim
in this case, Gipson’s trial counsel attempted to undermine her credibility by
emphasizing that despite the allegations of abuse, the victim had not left Gipson, had
not tried to stop the abuse, and had lied to others about what had occurred rather than
report the abuse. Under these circumstances, the executive director’s testimony did
not improperly place Gipson’s character in issue and was relevant “because the
reasons that a victim would not immediately leave after a violent event or report the
abuse are beyond the ken of the average layperson.” Id. See Works v. State, 301 Ga.
App. 108, 112 (4) (686 SE2d 863) (2009) (expert testimony regarding “the cycle of
domestic violence and the behavior of domestic violence victims” was admissible to
explain the victim’s contradictory statements about what had occurred); Alvarado v.
13
State, 257 Ga. App. 746, 748 (2) (572 SE2d 18) (2002) (expert testimony regarding
battered person syndrome and the cycle of violence in an abusive relationship was
admissible to explain victim’s failure to report the abuse); Parrish v. State, 237 Ga.
App. 274, 277 (2) (i) (514 SE2d 458) (1999) (expert testimony regarding “learned
helplessness” of domestic abuse victims was admissible to explain the victim’s
behavior). Accordingly, the trial court committed no error, much less plain error in
admitting the executive director’s expert testimony.6
6
Gipson also argues that executive director’s testimony was improper because
the director did not personally interview the victim and was not asked any
hypothetical questions by the prosecutor. But the fact that the executive director did
not personally interview the victim went only to the weight, not the admissibility, of
her testimony. See Parrish, 237 Ga. App. at 277-278 (2) (iii) & (iv) (fact that expert
did not personally examine domestic abuse victim did not render the expert’s
testimony inadmissible). See also United States v. Vallejo, 237 F.3d 1008, 1021 (9th
Cir. 2001) (district court erred in excluding expert testimony of school psychologist
on ground that he did not personally examine the defendant); United States v.
Bighead, 128 F.3d 1329, 1330 (9th Cir. 1997) (per curiam) (expert testimony
regarding common characteristics of abuse victims was admissible even though
expert did not personally examine the victim in the case). Furthermore, hypothetical
questions are allowed, but not required, under the new evidence code. See Paul S.
Milich, Ga. Rules of Evidence, § 15:6, p. 510 (2013–2014 ed.); OCGA § 24-7-705;
Taylor v. Burlington Northern R. Co., 787 F.2d 1309, 1317 (9th Cir. 1986) (“Federal
Rule of Evidence 705 largely eliminates the need for counsel to ask [hypothetical]
questions, because the rule permits an expert to testify as to his opinion without
counsel’s providing him with a factual basis for it.”).
14
4. Gipson also contends that the State improperly placed his character in issue
by questioning him about a religious emblem he was wearing during cross-
examination. As with the prior enumeration of error, Gipson failed to object at trial
to his cross-examination by the State, and thus he must show that the trial court
committed plain error by allowing the prosecutor’s questions. See OCGA § 24-1-103
(d); Fraser, 329 Ga. App. at 2.
During cross-examination, the prosecutor pointed out that Gipson was wearing
a Christian cross and insinuated through a series of questions that Gipson was a
hypocrite in light of his abusive conduct towards the victim. While the prosecutor’s
questioning of Gipson was argumentative and improper, Gipson has failed to show
that the questions, when viewed in the context of the trial as a whole, seriously
affected the fairness, integrity, or public reputation of the proceedings or likely
affected the outcome. Hence, Gipson has failed to show that the trial court’s error in
permitting the prosecutor’s questions rose to the level of plain error. See Perez, __
Ga. App. at __ (1) (Case No. A14A1992).
5. Gipson maintains that the trial court erred in its charge to the jury on
aggravated battery. OCGA § 16-5-24 (a) provides: “A person commits the offense of
aggravated battery when he or she maliciously causes bodily harm to another by
15
depriving him or her of a member of his or her body, by rendering a member of his
or her body useless, or by seriously disfiguring his or her body or a member thereof.”
(Emphasis supplied.) Count 5 of the indictment alleged that Gipson committed
aggravated battery in September 2012 “by depriving [the victim] of a member of . .
. her body, by rendering a member of said [victim’s] body useless, and by seriously
disfiguring . . . her body and a member thereof” when he caused the victim to fall
backward out of the chair and fracture one of her vertebrae. (Emphasis supplied.) The
trial court read the indictment to the jury and charged the jury on the full statutory
definition of aggravated battery set forth in OCGA § 16-5-24 (a).
Gipson argues for the first time on appeal that the aggravated battery charge
was not properly tailored to the indictment or adjusted to the evidence. Because
Gipson did not object at trial to the aggravated battery charge, we review the charge
only for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga. App. 257, 260
(2) (744 SE2d 429) (2013).
Reversal based on plain error is authorized [only] if the instruction was
erroneous, the error was obvious, the instruction likely affected the
outcome of the proceedings, and the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Satisfying all four
prongs of this standard is difficult, as it should be.
16
(Citation and punctuation omitted.) Booker, 322 Ga. App. at 260 (2). See White v.
State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011).
There was no error in the trial court’s charge on aggravated battery, and
certainly no plain error. “If a crime may be committed in more than one way, it is
sufficient for the State to show that it was committed in any one of the separate ways
listed in the indictment, even if the indictment uses the conjunctive rather than
disjunctive form.” (Citation and punctuation omitted.) Bray v. State, 330 Ga. App.
768, 772 (1) (768 SE2d 285) (2015). Thus, because the indictment alleged that
Gipson committed aggravated battery by depriving the victim of a member of her
body, rendering a member of her body useless, and seriously disfiguring her body and
a member thereof, the State could prove that Gipson committed the offense in any of
those three ways. Id. Consequently, it was proper for the trial court to charge the jury
on the full statutory definition of aggravated battery as set forth in OCGA § 16-5-24
(a), which delineated the three alternative ways the offense could be committed. See
Stander v. State, 226 Ga. App. 495, 496-497 (1) (486 SE2d 712) (1997). Compare
Hopkins v. State, 255 Ga. App. 202, 204-206 (2) (564 SE2d 805) (2002) (indictment
only alleged that defendant committed aggravated assault by seriously disfiguring the
17
victim’s arm, but the trial court charged the jury on the full statutory definition of
aggravated battery). Moreover, the trial court also charged the jury that the burden
was on the State “to prove every material allegation of the indictment and every
material element of the crime charged beyond a reasonable doubt.” Under these
circumstances, the jury instructions were properly tailored to the indictment and the
evidence, and Gipson has failed to show that the trial court committed plain error.
6. Gipson also maintains that the trial court erred in its recharge to the jury in
response to the jury’s question about the definition of “intent to kill.” After beginning
its deliberations, the jury sent a note to the trial court inquiring whether “intent to
kill” meant “beating so bad [the victim] could die” or “premeditated intent to kill.”
In response, the trial court recharged the jury using the pattern instructions for
aggravated assault with intent to commit murder, criminal intent, and “no
presumption of criminal intent.” See 2 Ga. Jury Instructions - Criminal §§ 1.41.10;
1.41.11; and 2.20.20.
Gipson contends that the trial court’s recharge to the jury was erroneous
because the court did not include the definition of a deadly weapon as part of its
recharge. His contention is without merit. Again, Gipson did not object to the
recharge, and thus we review his claim only for plain error. Guajardo v. State, 290
18
Ga. 172, 175-176 (4) (718 SE2d 292) (2011). And there was no error in the trial
court’s recharge, plain or otherwise. Intent to kill is an element of aggravated assault
with intent to murder (as alleged in Count 3 of the indictment), see Grant, 326 Ga.
App. at 122 (1), not aggravated assault with a deadly weapon (as alleged in Count 1
of the indictment). See Chapman v. State, 275 Ga. 314, 317 (3) (565 SE2d 442)
(2002). Thus, the jury was asking a question that pertained only to the charge for
aggravated assault with intent to murder, and the inclusion of a charge on the
definition of a deadly weapon in this context would have been inapposite and
potentially confusing. Accordingly, the trial court did not commit plain error by
omitting a charge on the definition of a deadly weapon from its recharge to the jury
on intent to kill. See generally Boynton v. State, 277 Ga. 130, 131 (2) (587 SE2d 3)
(2003) (“When a jury requests additional instructions on a point of law, the trial court
in its discretion can recharge in full or limit its recharge to the scope of the jury’s
request.”).
7. Gipson next argues that the trial court erred in failing to merge his
convictions for battery (Count 2) and aggravated assault with intent to murder (Count
3) into his conviction for aggravated assault with an offensive weapon (Count 1) for
purposes of sentencing. We disagree.
19
“It is axiomatic that Georgia law bars conviction for a crime that arises from
the same criminal conduct included as a matter of fact or as a matter of law in another
crime for which the defendant has been convicted.” (Citation and punctuation
omitted.) Crowley v. State, 315 Ga. App. 755, 759 (3) (728 SE2d 282) (2012). When
the same act or transaction violates two statutes, we apply the “required evidence”
test adopted in Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006), to
determine whether one crime is included in the other under OCGA § 16-1-6 (1). See
Southwell v. State, 320 Ga. App. 763, 764 (1) (740 SE2d 725) (2013).
Under the required evidence test, neither offense is included in the other
if each statutory provision requires proof of a fact which the other does
not. Consequently, when each of two statutes requires proof of an
additional fact which the other does not, an acquittal or conviction under
one statute does not exempt the defendant from prosecution and
punishment under the other, even though the charges are based on a
single act.
(Citation and punctuation omitted.) Petro v. State, 327 Ga. App. 254, 259 (2) (758
SE2d 152) (2014). In applying the required evidence test, “we consider the crimes as
indicted and not every possible manner of committing a particular crime.” Franks v.
State, 325 Ga.App. 488, 495 (3), n. 8 (758 SE2d 152) (2013).
20
Here, Count 1 of the indictment alleged that on April 9, 2013, Gipson “did
unlawfully then and there make an assault upon the person of [the victim], with an
object which was likely to result in serious bodily injury to said [victim], by striking
said [victim] with the limb and stick, contrary to the laws of this State, the good order,
peace and dignity thereof.” Count 2 alleged that on April 9, 2010, Gipson “did
unlawfully then and there intentionally cause visible bodily harm to [the victim],
contrary to the laws of this State, the good order, peace and dignity thereof.” As
previously noted, Count 3 alleged that on April 9, 2013, Gipson “did unlawfully then
and there make an assault upon the person of [the victim] with the intent to kill,
contrary to the laws of this State, the good order, peace and dignity thereof.”
(a) We conclude that under the required evidence test, Gipson’s conviction for
battery did not merge into his conviction for aggravated assault with an offensive
weapon. As alleged in the indictment, battery required proof of a fact – visible
physical harm to the victim – that aggravated assault with an offensive weapon did
not, and aggravated assault with an offensive weapon required proof of a fact – the
use of a tree limb or stick, an object that was likely to result in serious bodily injury
to the victim – that battery did not. See OCGA §§ 16-5-21 (a) (2); 16-5-23.1 (a).
Hence, under the required evidence test, Gipson’s convictions for battery and
21
aggravated assault with an offensive weapon did not merge. See Kelley v. State, 248
Ga. App. 721, 723 (1) (548 SE2d 357) (2001) (aggravated assault under OCGA § 16-
5-21 (a) (2) and battery under OCGA § 16-5-23.1 (a) have different required
elements).
(b) We likewise conclude that under the required evidence test, Gipson’s two
aggravated assault convictions did not merge.7 As alleged in the indictment,
aggravated assault with intent to murder required proof of a fact – the intent to kill
– that aggravated assault with an offensive weapon did not, and aggravated assault
with an offensive weapon required proof of a fact – use of the tree limb or stick, an
object that was likely to result in serious bodily injury to the victim – that aggravated
assault with intent to murder did not. See OCGA §§ 16-5-21 (a) (1), (2). The trial
7
When a defendant is convicted for multiple violations of a “single statutory
provision,” the required evidence test enunciated in Drinkard does not apply; instead,
courts, in determining whether multiple convictions are permissible, must determine
the “‘unit of prosecution,’ or the precise act or conduct that is being criminalized
under the statute.” State v. Marlowe, 277 Ga. 383, 384 (589 SE2d 69) (2003). In the
recent case of Thomas v. State, 292 Ga. 429, 434 (5) (738 SE2d 571) (2013), our
Supreme Court applied the required evidence test, rather than the unit of prosecution
test, in determining whether a defendant could be convicted of aggravated assault
under both OCGA §§ 16-5-21 (a) (1) and (a) (2) for the same act or transaction. Thus,
as made clear by Thomas, we are to apply the required evidence test in evaluating
whether Gipson’s convictions under OCGA §§ 16-5-21 (a) (1) and (a) (2) should
have been merged for purposes of sentencing.
22
court therefore did not err in sentencing Gipson on both counts of aggravated assault.
See Thomas, 292 Ga. at 434 (5) (aggravated assault convictions under OCGA §§ 16-
5-21 (a) (1) and (a) (2) did not merge under the required evidence test). Compare
Jeffrey v. State, __ Ga. __ (__ SE2d __) (Case No. S14A1418, decided March 16,
2015) (multiple convictions for aggravated assault with a deadly weapon merged for
purposes of sentencing).8
8. Gipson contends that his trial counsel was ineffective in several respects. To
prevail on his claim of ineffective assistance of counsel under the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)
(1984), Gipson “must show both that his counsel performed in a professionally
8
We note that in Thomas v. State, 310 Ga. App. 404, 410 (5) (714 SE2d 404)
(2011), this Court applied the unit of prosecution test in determining whether a
defendant’s convictions for aggravated assault with intent to murder and aggravated
assault with a deadly weapon should have been merged for sentencing. Notably, one
of the judges concurred in the judgment only in Thomas, and thus the case, which was
decided before the Supreme Court’s recent (unrelated) Thomas decision, is physical
precedent and thus not binding in subsequent cases. See Court of Appeals Rule 33
(a). Additionally, Mitchell v. State, 187 Ga. App. 40, 44 (4) (369 SE2d 487) (1988),
was decided before Drinkard and used language consistent with the “actual evidence”
test in analyzing whether the defendant’s convictions for aggravated assault with
intent to murder and aggravated assault with a deadly weapon should have merged;
thus, any reliance on that case would be misplaced. See Petro, 327 Ga. App. at 261
(2) (rejecting appellant’s reliance on pre-Drinkard cases applying “actual evidence”
test in addressing merger issue).
23
deficient manner and that there is a reasonable probability that, but for such
deficiency, the result of his trial would have been different.” Smith v. State, 292 Ga.
620, 621 (2) (740 SE2d 158) (2013). If Gipson fails to carry his burden of proving
either prong of the Strickland test, we need not examine the other prong. Watson v.
State, 289 Ga. 39, 45 (12) (709 SE2d 2) (2011). “In reviewing the trial court’s
decision, we accept the trial court’s factual findings and credibility determinations
unless clearly erroneous, but we independently apply the legal principles to the facts.”
(Citation and punctuation omitted.) Id. With these principles in mind, we turn to
Gipson’s specific allegations of ineffective assistance.
(a) Gipson first argues that his trial counsel was ineffective because the Public
Defender’s Office where he worked misplaced Gipson’s case file. But the case file
was not misplaced until after Gipson was already convicted and sentenced. Hence,
Gipson clearly cannot show that the alleged deficiency prejudiced the outcome of his
trial.
(b) Gipson next argues that his trial counsel was ineffective for failing to meet
with him more often before trial. However, trial counsel testified at the new trial
hearing that he met with Gipson several times before trial to discuss his defense and
the discovery in the case, including on the morning of trial, and “there is no magic
24
amount of time which counsel must spend in actual conference with his client.”
(Citation and punctuation omitted.) Hendricks v. State, 290 Ga. 238, 242 (4) (c) (719
SE2d 466) (2011). Gipson thus has failed to show that his trial counsel was deficient
for failing to meet with him more frequently. Furthermore, “[Gipson] does not
describe for us how additional pre-trial communications would have changed the
outcome of his trial. Therefore, he also has failed to establish that this alleged
instance of ineffectiveness prejudiced his defense.” (Citation, punctuation, and
footnote omitted.) Baldivia v. State, 267 Ga. App. 266, 274 (5) (d) (599 SE2d 188)
(2004).
(c) Gipson also argues that his trial counsel was ineffective for failing “to
prepare, investigate or subpoena witnesses” on his behalf, but he failed to proffer the
testimony of any alleged potential witnesses at the new trial hearing. “Because
[Gipson] failed to make such a proffer, it is impossible for him to show there is a
reasonable probability the results of the proceeding would have been different, and
thus impossible for him to succeed on his ineffective assistance claim.” (Citations and
punctuation omitted.) Alvarez v. State, 309 Ga. App. 462, 466 (3) (710 SE2d 583)
(2011).
25
(d) Gipson further argues that his trial counsel was ineffective for failing to
object to the prosecutor’s questioning of witnesses “during the course of the trial.”
Gipson does not point to any specific questions asked by the prosecutor to which his
trial counsel should have objected, and he does not support his argument with any
citations to the record or legal authority. Consequently, Gipson’s unsupported
ineffective assistance claim is deemed abandoned. See Court of Appeals Rule 25 (c)
(2); Patterson v. State, 327 Ga. App. 695, 698 (3) (761 SE2d 101) (2014).
(e) Gipson argues that his trial counsel was ineffective for failing to object to
the expert testimony of the executive director of the domestic violence shelter.
However, as explained supra in Division 3, the trial court acted within its discretion
in qualifying the executive director as an expert and admitting her testimony
regarding the typical characteristics of domestic abuse victims and the cycle of
domestic abuse. Thus, any objection by trial counsel to the expert’s testimony would
have been without merit, and “failure to make a meritless objection cannot be
evidence of ineffective assistance[.]” (Punctuation and footnote omitted.) Brown v.
State, 307 Ga. App. 797, 807 (5) (e) (706 SE2d 170) (2011).
26
(f) Additionally, Gipson argues that his trial counsel was ineffective for failing
to move for a mistrial when the trial court temporarily removed Gipson from the
courtroom after an outburst. We disagree.
In the case of disruptive behavior in the courtroom, a defendant
can lose his right to be present at trial if, after he has been warned by the
judge that he will be removed if he continues his disruptive behavior, he
nevertheless insists on conducting himself in a manner so disorderly,
disruptive and disrespectful of the court that his trial cannot be carried
on with him in the courtroom. Once lost, the right to be present can, of
course, be reclaimed as soon as the defendant is willing to conduct
himself consistently with the decorum and respect inherent in the
concepts of courts and judicial proceedings.
(Footnote omitted.) Lovelace v. State, 262 Ga. App. 690, 693 (4) (586 SE2d 386)
(2003).
During the cross-examination of a State’s witness, Gipson became upset when
his trial counsel would not ask certain questions that he had written down for his
counsel. The trial court instructed Gipson to wait until the jury left the courtroom
before voicing his concern about his trial counsel and warned him, “[D]o not again
speak out and interrupt what’s going on before the jury.” After the jury exited from
the courtroom, Gipson’s trial counsel agreed to ask the questions written down by
27
Gipson. The jury returned to the courtroom, and trial counsel began cross-examining
the witness using the questions written by Gipson, but the trial court sustained the
State’s objections to the questions, which were argumentative and improper. Gipson
then became upset and interrupted the witness’s cross-examination, leading the trial
court to warn him, “I am going to lock you up outside the presence of the courtroom
if you continue that way.” Gipson, however, made another outburst, leading the trial
court to remove him from the courtroom for a few minutes before allowing him to
return. The trial court instructed the jury “not to hold any of that against Mr. Gipson.”
The trial court did not err by briefly removing Gipson from the courtroom as
a result of his outburst after he was warned about his behavior. See West v. State, 271
Ga. App. 522, 523 (610 SE2d 159) (2005); Lovelace, 262 Ga. App. at 693 (4). Hence,
Gipson has failed to show that he would have been “entitled to a mistrial under the
circumstances presented, [and] trial counsel’s failure to pursue a meritless motion
does not constitute ineffective assistance of counsel.” Boatright v. State, 308 Ga.
App. 266, 269 (1) (a) (707 SE2d 158) (2011).
(g) Gipson argues that his trial counsel was ineffective for failing to object
when, during cross-examination, the prosecutor impeached him with his 2004
convictions for felony obstruction of a law enforcement officer. But Gipson failed to
28
raise this claim of ineffective assistance in his motion for new trial and thus has
waived the issue on appeal. See Ransom v. State, 298 Ga. App. 360, 364 (2) (b) (680
SE2d 200) (2009).
(h) Gipson also argues that his trial counsel was ineffective for failing to object
when the prosecutor questioned him about the religious emblem he was wearing
during cross-examination. As explained supra in Division 4, the prosecutor’s
questions were improper. Pretermitting whether trial counsel was deficient for failing
to object to the prosecutor’s questions, we conclude that Gipson has failed to show
a reasonable probability that the outcome of the trial would have been different but
for his counsel’s alleged deficiency. See Himmel v. State, 246 Ga. App. 845, 850 (2)
(d) (542 SE2d 57) (2000).
(i) Gipson argues that his trial counsel was ineffective for failing to object to
the trial court’s recharge to the jury in response to the jury’s question about the
meaning of “intent to kill.” As explained supra in Division 6, there was no error in the
trial court’s recharge, and thus Gipson cannot show that his trial counsel was
deficient for failing to object.
(j) Lastly, Gipson argues that his trial counsel’s alleged errors, if considered
cumulatively, demonstrate that the representation was so deficient as to constitute
29
ineffective assistance. “We evaluate only the effects of matters determined to be error,
not the cumulative effect of non-errors. Here, even if trial counsel . . . [was] deficient
in some respects, there is no reasonable probability that, but for those deficiencies,
the outcome of [Gipson’s] trial . . . would have been different.” (Citations and
punctuation omitted.) Wofford v. State, 329 Ga. App. 195, 207 (5) (f) (764 SE2d 437)
(2014).
Judgment affirmed. McMillian, J., concurs. Ray, J., concurs in the judgment
only in Division 7(b) and fully in all other divisions.
30