                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                             BRANCH and BETHEL, 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


                                                                      June 21, 2017




In the Court of Appeals of Georgia
 A17A0327. THOMPSON v. THE STATE.

      MCFADDEN, Presiding Judge.

      After a jury trial, Cedric Thompson was convicted of three counts of

aggravated battery and one count of possession of a firearm during the commission

of a felony. Thompson challenges the sufficiency of the evidence, but there was

enough evidence to authorize the jury to find guilt beyond a reasonable doubt. He

complains of the omission of certain language from a jury instruction that the

testimony of a single witness is sufficient to establish a fact, but that instruction was

not objected to and did not constitute plain error. And he challenges the effectiveness

of his trial counsel, but trial counsel’s performance was not both deficient and

prejudicial. So we affirm.

      1. Sufficiency of the evidence.
      Thompson contends that there was insufficient evidence to support his

convictions. The contention is without merit.

      The applicable standard of review directs that

            When reviewing a defendant’s challenge to the sufficiency of the
      evidence, we view the evidence in the light most favorable to the jury’s
      verdict, and the defendant no longer enjoys the presumption of
      innocence. We do not weigh the evidence or determine witness
      credibility, but only determine if the evidence was sufficient for a
      rational trier of fact to find the defendant guilty of the charged offense
      beyond a reasonable doubt.

Kilby v. State, 289 Ga. App. 457 (1) (657 SE2d 567) (2008) (citations omitted).

      So viewed, the evidence showed that on October 8, 2011, Thompson was

outside at an apartment complex in Atlanta, yelling that anyone selling drugs in the

neighborhood would have to give him a 10 percent commission. Darrice Smith, who

was standing with a group of men, laughed as Thompson yelled. Thompson then went

into his apartment and returned with a handgun. Thompson began shooting the gun,

hitting Smith in the leg with a bullet. As Thompson continued firing, his gunshots hit

two other victims – Sandra Howell was shot in the arm as she ran back to an

apartment and 14-year-old T. D. was shot in the foot as she ran down steps. The

evidence was sufficient to authorize a rational trier of fact to find Thompson guilty

beyond a reasonable doubt of the charged offenses of aggravated battery (OCGA §

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16-5-24) and possession of a firearm during the commission of a felony (OCGA § 16-

11-106). See Fulton v. State, 278 Ga. 58, 59 (1) (597 SE2d 396) (2004).

      2. Jury instruction on testimony of a single witness.

      Thompson asserts that the trial court erred in instructing the jury that the

“[t]estimony of a single witness is sufficient to establish a fact.” He argues that the

instruction should have included the following emphasized language, as set forth in

the suggested pattern jury instructions: the “testimony of a single witness, if believed,

is sufficient to establish a fact.” Georgia Suggested Pattern Jury Instructions, Vol. II:

Criminal Cases, §1.31.90 (emphasis supplied). As Thompson concedes in his brief,

no objection to the instruction was raised at trial, and therefore we review it for plain

error under OCGA § 17-8-58 (b).

             [T]he test for determining whether there is plain error in jury
      instructions under OCGA § 17-8-58 (b) [is] as follows. First, there must
      be an error or defect – some sort of deviation from a legal rule – that has
      not been intentionally relinquished or abandoned, i.e., affirmatively
      waived, by the appellant. Second, the legal error must be clear or
      obvious, rather than subject to reasonable dispute. Third, the error must
      have affected the appellant’s substantial rights, which in the ordinary
      case means he must demonstrate that it affected the outcome of the trial
      court proceedings. Fourth and finally, if the above three prongs are
      satisfied, the appellate court has the discretion to remedy the error –
      discretion which ought to be exercised only if the error seriously affects
      the fairness, integrity or public reputation of judicial proceedings.


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Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) (2012) (citation

omitted). “Thus, beyond showing a clear or obvious error, plain-error analysis

requires the appellant to make an affirmative showing that the error probably did

affect the outcome below.” Gates v. State, 298 Ga. 324, 327 (3) (781 SE2d 772)

(2016) (citation and punctuation omitted).

      In this case, even if we assume, without deciding, that the jury instruction was

erroneous, Thompson has not shown that such error probably affected the outcome

below. “[A]n erroneous jury instruction cannot be considered in isolation, but must

be considered in the context of the entire jury charge on the record as a whole to

determine whether there is a reasonable likelihood that the jury improperly applied

the challenged instruction.” Davis v. State, 329 Ga. App. 797, 801 (2) (764 SE2d 588)

(2014) (citation omitted). Here, after the trial court gave the single witness jury

charge, it fully charged the jury on the credibility of witnesses. Amongst other things,

the court instructed the jurors that they must determine the credibility of the witnesses

and that they must decide which witnesses and which testimony to believe or not

believe. The court further charged the jury on the various factors to consider in

deciding witness credibility.



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      Given the jury instructions as a whole, there is no reasonable likelihood that

the jury improperly applied the challenged instruction as not requiring them to

determine the believability of any single witness. Rather, it is apparent that the jury

was fully informed that they were required to determine the credibility of all of the

witnesses and the believability of their testimony. Because Thompson has failed to

make an affirmative showing that the jury instruction probably affected the outcome

below, the instruction did not constitute plain error.

      3. Ineffective assistance of counsel.

      Thompson claims that his trial counsel was ineffective in failing to object to

the single-witness jury instruction discussed above, in failing to object to testimony

about a transcript of recorded telephone conversations, and in withdrawing a hearsay

objection to certain testimony. “To prevail on these claims, [Thompson] must show

both that his counsel’s performance was deficient and that the deficient performance

so prejudiced him that, but for the deficiency, there is a reasonable probability that

the outcome of the trial would have been different.” Daniel v. State, 338 Ga. App.

389, 392 (3) (787 SE2d 281) (2016) (citations omitted). “Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.” Cushenberry v. State, 300 Ga. 190, 197 (3) (794 SE2d 165)

                                          5
(2016) (citations and punctuation omitted). Thompson has failed to show both

deficient performance and prejudice.

      a. Failure to object to jury instruction.

      Thompson claims that his trial counsel was ineffective in failing to object to

the jury instruction on the testimony of a single witness being sufficient to establish

a fact because it omitted the “if believed” language of the pattern jury instruction as

discussed above in Division 2. In the case of Wilhite v. State, 337 Ga. App. 324 (787

SE2d 293) (2016), this same claim of ineffective assistance was rejected on the

ground that the appellant had “failed to show the requisite prejudice in light of the

trial court’s full charge to the jury, which included an instruction that the jury must

determine witness credibility and decide which witnesses to believe or not to

believe.” Id. at 327 (1) (c). Likewise, in the instant case, Thompson has failed to show

that he was prejudiced by the lack of an objection to the single witness jury

instruction in light of the trial court having fully charged the jury on its duties to

determine witness credibility and to decide which witnesses to believe or not believe.

      b. Failure to object to testimony about transcript.

      At trial, a deputy sheriff identified Thompson’s voice on recorded jail

telephone conversations. Portions of the recorded calls, totaling approximately three

                                           6
minutes, were then played for the jury. Thereafter, the state showed a transcript of the

recording to the deputy and asked him questions about its contents. Thompson now

asserts that his trial counsel was ineffective in failing to object to the deputy’s

testimony about the transcript, arguing that the transcript, unlike the recording, was

not evidence and that the deputy’s testimony improperly gave credibility to the

transcript.

      Thompson, however, has not identified any specific part of the transcript that

differed from the recording played for the jury, has not pointed to any testimony by

the deputy that misconstrued the contents of the transcript or the recording, and has

not shown how he was harmed by the testimony. Thus, even if we assume that

counsel was deficient in failing to object to the deputy’s testimony about the

transcript, Thompson has not shown that, but for the lack of such an objection, there

is a reasonable probability the outcome of the trial would have been different. See

Stokes v. State, 281 Ga. 825, 834 (8) (e) (642 SE2d 82) (2007) (no ineffective

assistance where appellant did not demonstrate how alleged failures of counsel

resulted in prejudice to his defense).

      c. Withdrawal of hearsay objection.



                                           7
      Thompson contends that his trial counsel was ineffective in withdrawing a

hearsay objection to a detective’s testimony that the mother of one of the shooting

victims had said that she knows Thompson from the apartment complex. At the

motion for new trial hearing, Thompson’s counsel testified that sometimes a decision

to allow hearsay can be strategic. When Thompson further questioned trial counsel

about withdrawing a hearsay objection, counsel responded that “trials are very fluid,”

that “there are so many things going on at trials [that] strategies change depending on

how testimony comes out from various witnesses,” that she had no rule to stay with

an objection “because there could have been something else going on in the trial,”

and that she could not “answer the question with a hard [and] fast rule because things

change all the time during trial.” Thompson elicited no other testimony from trial

counsel explaining any further motive behind her decision to withdraw the hearsay

objection.

      As a general rule, matters of reasonable trial strategy and tactics do not amount

to ineffective assistance of counsel, and an attorney’s decision to forego objecting to

hearsay may constitute reasonable trial strategy. Williams v. State, 282 Ga. 561, 564

(5) (a) (651 SE2d 674) (2007). “In the absence of testimony to the contrary, counsel’s

actions are presumed strategic.” Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343)

                                          8
(2005) (citation and punctuation omitted). Here, because Thompson failed to elicit

any such testimony to the contrary, trial counsel’s decision to forego the hearsay

objection “is presumed strategic and will not support a claim of ineffective

assistance.” Traylor v. State, 332 Ga. App. 441, 448 (3) (b) (773 SE2d 403) (2015)

(citations omitted). See also Futch v. State, 286 Ga. 378, 383 (2) (c) (687 SE2d 805)

(2010).

      Judgment affirmed. Branch and Bethel, JJ., concur.




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