                              FIRST DIVISION
                                DOYLE, C. J.,
                         PHIPPS, P. J., and BOGGS, 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.
                               http://www.gaappeals.us/rules


                                                                 November 20, 2015




In the Court of Appeals of Georgia
 A15A0795. MORAN v. STATE OF GEORGIA

      BOGGS, Judge.

      Donald Moran appeals from his convictions of aggravated battery, aggravated

assault, burglary, possession of a knife during the commission of a felony, and

stalking. He asserts that the State presented insufficient evidence to support his

convictions and that he received ineffective assistance of counsel. For the reasons

explained below, we reverse his stalking conviction and affirm his remaining

convictions.

      When reviewing the sufficiency of the evidence,

      the relevant question is whether, after viewing the evidence in light most
      favorable to the prosecution, any rational trier of fact could have found
      the essential elements of the crime beyond a reasonable doubt. This
      familiar standard gives full play to the responsibility of the trier of fact
      fairly to resolve conflicts in the testimony, to weigh the evidence, and
      to draw reasonable inferences from basic facts to ultimate facts. Once a
      defendant has been found guilty of the crime charged, the fact finder’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.


(Citations and footnotes omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)

(99 SCt 2781, 61 LE2d 560) (1979).

      So viewed, the evidence shows that in July 2011, the male victim and Moran

developed “somewhat of a friendship” based upon their mutual love of custom

motorcycles. About a month later, Moran introduced his girlfriend, Kimberly

Thomas, to the victim. After the couple later began spending a lot of time at the

victim’s home, which he shared with four other people, the victim and Thomas also

developed a friendship. After witnessing arguments between Moran and Thomas over

time, the victim had “a falling out” with Moran.

      Thomas testified that Moran had “trust issues” that made it difficult for her to

spend time with friends while he was her boyfriend. As a result of Moran’s frequent

accusations of cheating, Thomas would lie to him when she spent time with friends.




                                          2
      On November 18, 2012, Thomas told Moran after an argument that she would

be having dinner with her father that evening. Earlier, Moran had “talked about going

out that night.” Thomas did not have plans for dinner with her father, however, and

instead called the victim to give her a ride to a restaurant where they consumed

alcohol. While Thomas was at the restaurant with the victim, she and Moran

exchanged numerous text messages.

      Through their text message exchanges, Moran informed Thomas that he knew

she was not at the home she shared with her father by stating, “I will sit in your

driveway till you come home. I’d like to meet your friends anyway.” He also stated,

“I think I’m going to wait till you come home and see who’s driving.” Moran further

wrote, “if your telling the truth it shouldn’t be long of a wait now since you been

absent for a couple of hours,” and “So are you gonna tell me the truth or not? Cause

I can sit here n see if you dads gonna bring you home or I can just go out and swing

by later to see if his car is there.” In a period of approximately four hours, Moran sent

51 texts to which Thomas replied only 9 times. In her next-to-the-last text at 9:58

p.m., Thomas told Moran, “I don’t want to talk to u.”

      Around 1:00 a. m., the victim drove Thomas back to her father’s home. The

victim went inside and followed Thomas to her room in the basement. He testified

                                           3
that he fell asleep fully clothed on the corner of her bed while she was in the

bathroom. He “awoke to a loud thud and yelling,” and saw Thomas on the ground and

Moran standing in front of him. By the time the victim stood up, Moran turned on

him. The victim threw his guard up as Moran approached because he believed Moran

was going to attack him. Moran “came to [him] person-to-person, body-to-body.”

They were locked together “chest-to-chest,” when the victim felt his back get really

warm and soaking wet. While the victim did not feel the first two or three stabs, he

“could feel him, kind of, digging around in my back at one point.” He let go of Moran

when he started getting dizzy, and the two fell apart. The victim denied having Moran

in a choke or sleeper hold before he was stabbed.

      Moran and Thomas then began arguing about Moran’s behavior, and the victim

placed himself in between Moran and Thomas. During this time, Moran stabbed the

victim in the knee and punched him in the face several times. Moran eventually

calmed down, and the victim left the room to seek medical attention. His injuries

included six puncture wounds in his upper back that required stitches, as well as knee

and lip wounds that also required stitches.

      Thomas testified that she was “black-out drunk” that evening, did not recall

seeing Moran or the victim in her home, and did not recall most of what took place.

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She could only remember “being in a lot of pain and . . . yelling at . . . [Moran and the

victim]” and “being in a cop car.” She did recall that Moran sent her text messages

that evening and responding to some of them. However, she was never asked whether

Moran’s repeated and numerous text messages made her afraid for her safety.

      She testified that at the time of the incident, her relationship with Moran “was

really rocky” and they “were arguing almost every day.” Moran was no longer

allowed to come to her father’s house based upon arguments her father witnessed. On

one occasion, they were arguing and “ended up fighting a little bit and [her] dad came

downstairs and chased [Moran] out of the house.” The victim testified that she was

“[a] little bit” afraid of Moran “when that argument was going on.” After her father

forbade Moran from coming to his home, Thomas would “sometimes, yes, sometimes,

no” allow Moran to come over when her father was not at home.

      Thomas’s father testified that he forbade Moran from coming to his home after

he saw a “change in his behavior.” Specifically, “[a] lot more arguing, a lot more in-

your-face-type arguing, up close and personal . . . Situations prior with the law in

which situations happened between the two of them that obviously that wasn’t good.”

      1. Moran contends insufficient evidence supports his convictions.



                                           5
      (a) Moran claims the State failed to present sufficient evidence to support his

stalking conviction because Thomas never testified that she was in fear for her safety

or intimidated by his behavior, there was no evidence that his contact with her was

without her consent, and he had a legitimate purpose for communicating with her

based upon their “anticipated plans” and “the nature of their relationship.”

      The indictment charged that Moran “follow[ed] and place[d] under surveillance

and contact[ed] . . . Thomas at a place, to wit: [her father’s address where she

resided], without the consent of . . . Thomas, for the purpose of harassing and

intimidating . . . Thomas.” “A person commits the offense of stalking when he or she

follows, places under surveillance, or contacts another person at or about a place or

places1 without the consent of the other person for the purpose of harassing and

intimidating2 the other person.” OCGA § 16-5-90 (a) (1). “A defendant need not

engage in unequivocally hostile conduct or make explicit threats in order to be



      1
       “Place or places” is defined as “any public or private property occupied by the
victim other than the residence of the defendant.” OCGA § 16-5-90 (a) (1).
      2
        “Harassing and intimidating” is defined as “a knowing and willful course of
conduct directed at a specific person which causes emotional distress by placing such
person in reasonable fear for such person’s safety or the safety of a member of his or
her immediate family, by establishing a pattern of harassing and intimidating
behavior, and which serves no legitimate purpose.” OCGA § 16-5-90 (a) (1).

                                          6
convicted of stalking. Even behavior that is not overtly threatening can provide the

requisite degree of intimidation and harassment if is it ongoing, repetitious, and

engaged in despite the communicated wishes of the victim.” Placanica v. State, 303

Ga. App. 302, 304 (693 SE2d 571) (2010).

      After carefully reviewing the evidence, we agree that the State failed to present

sufficient evidence that Thomas was placed in reasonable fear for her safety, an

essential element of stalking. See Crapps v. State, 329 Ga. App. 820, 823-824 (1)

(766 SE2d 178) (2014). As in In the Interest of C. C., 280 Ga. App. 590, 591-592 (1)

(634 SE2d 532) (2006), there was no evidence that Thomas was afraid or had any

emotional distress. See also Wright v. State, 292 Ga. App. 673, 676 (665 SE2d 374)

(2008) (insufficient evidence to support aggravated stalking conviction because no

evidence that victim in reasonable fear for her safety during multiple phone

conversations with defendant). While there was evidence that Thomas was “a little

bit” afraid of Moran during a previous argument, there was no evidence showing that

she was afraid for her safety from the charged conduct. We therefore reverse his

conviction for stalking.

      (b) Moran asserts generally that the State failed to introduce sufficient evidence

of intent with regard to his aggravated assault, aggravated battery, burglary, and

                                          7
possession of a knife during the commission of a felony. We disagree. The record

contains ample evidence of intent, and “the intent to commit a felony necessary for

the burglary conviction need not be formed at the precise moment of entry, but can

be formed while the perpetrator is remaining on the premises. [Cit.]” Waters v. State,

294 Ga. App. 442, 443 (1) (669 SE2d 450) (2008).

      2. Moran asserts that trial counsel was ineffective in failing to request a pre-

trial hearing to determine whether he was immune from prosecution on the ground

of self-defense. In ruling on a claim of ineffective assistance,

      [u]nder the two-part test established in Strickland v. Washington, 466
      U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [Moran] must prove
      both that his trial counsel’s performance was deficient and that there is
      a reasonable probability that the trial result would have been different
      if not for the deficient performance. If an appellant fails to meet his
      burden of proving either prong of the Strickland test, the reviewing
      court does not have to examine the other prong.


(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3)

(722 SE2d 774) (2012).

      As a general rule, reasonable trial tactics and strategies do not amount
      to ineffective assistance of counsel. The decisions on which witnesses
      to call and all other strategies and tactical decisions are the exclusive
      province of the lawyer after consultation with his or her client. Whether

                                          8
       an attorney’s trial tactics were reasonable is a question of law, not fact.
       When assessing the reasonableness of counsel’s actions, a court must
       evaluate counsel’s performance from his or her perspective at the time
       of trial. This Court reviews a trial court’s ruling on an ineffective
       assistance claim on appeal by accepting the trial court’s factual findings
       and credibility determinations unless clearly erroneous, but we
       independently apply the legal principles to the facts. [Cits.]


Hughley v. State, 330 Ga. App 786, 791 (4) (769 SE2d 537) (2015). And

       we are not limited in our assessment of the objective reasonableness of
       lawyer performance to the subjective reasons offered by trial counsel for
       his conduct. If a reasonable lawyer might have done what the actual
       lawyer did — whether for the same reasons given by the actual lawyer
       or different reasons entirely — the actual lawyer cannot be said to have
       performed in an objectively unreasonable way.[Cit.]


Id. at 791-792 (4).

       Here, trial counsel testified that he did not request an immunity hearing because

he did not want to subject Moran to cross-examination before trial and “there were

some questions [he] wanted to ask [the victim] . . . for the first time in front of a jury.”

Additionally, he did not believe a motion for immunity based upon self-defense

would have been successful. As counsel did not employ an objectively unreasonable

trial strategy, we affirm the trial court’s denial of Moran’s ineffective assistance of


                                             9
counsel claim. See Boddie v. State, 327 Ga. App. 667, 670 (1) (760 SE2d 668) (2014)

(no ineffective assistance where trial counsel did not make unreasonable strategic

decision against filing a pre-trial motion).

      Judgment affirmed in part and reversed in part. Doyle, C. J. and Phipps, P. J.,

concur.




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