                              FIRST DIVISION
                               DOYLE, C. J.,
                          ANDREWS, P. J., and RAY, 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


                                                                  September 12, 2016




In the Court of Appeals of Georgia
 A16A1000. NEWBY v. THE STATE.

      RAY, Judge.

      A jury convicted Matt Jonathan Newby of aggravated assault (OCGA § 16-5-

21 (b) (2)) and theft by taking (OCGA § 16-8-2). He appeals from the denial of his

motion for new trial, contending that the evidence was insufficient to sustain his

convictions, that the trial court erred in failing to exercise its discretion to overturn

the verdict on the general grounds, and that he received ineffective assistance of

counsel. For the reasons that follow, we affirm.

      The evidence adduced at trial shows that on the morning of October 27, 2014,

the victim, Marcus Moss, moved his motorcycle from storage in his girlfriend’s barn

and parked it in the carport in front of her house. Moss then went back inside the

house. When Moss later exited the house, he found that his motorcycle was missing.
      Seeing Moss searching around, a neighbor, Erwin Stephens, called out to him

and relayed that he had seen a white male push the motorcycle down the street just

minutes earlier. Moss got into Stephens’s car, and Stephens drove down the street in

the direction that he had seen the unidentified male push the motorcycle. Moss

spotted his motorcycle with Newby sitting atop it outside of a house owned by

Newby’s mother. When Moss confronted him, Newby started the motorcycle and

sped toward Moss, forcing him to move out of the way to avoid being hit as Newby

took off and disappeared. Stephens then drove Moss back to his house, and Moss

called the police.

      Later that day, after the police made a report and left to investigate, Newby’s

brother, Justin Newby, knocked on Moss’s door and took Moss to a vacant house

where Justin returned Moss’s motorcycle to him. The motorcycle had been “hot-

wired,” causing about $1,200 worth of damage. A jury later convicted Matt Newby

of aggravated assault and theft by taking.

      Newby challenges his conviction under both sufficiency of the evidence and

the general grounds pursuant to OCGA §§ 5-5-20, 5-5-21. These are separate issues

requiring separate analyses.



                                         2
      1. We turn first to an analysis of the sufficiency of the evidence. On appeal, we

view the evidence in the light most favorable to the prosecution to determine if any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61

L.Ed.2d 560) (1979). Furthermore, “[t]o 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.” OCGA § 24-14-6.

      [W]here the defendant offers an explanation of circumstantial facts or
      an alternative hypothesis of events, the reasonableness of that
      explanation is for the factfinder. Because the factfinder has heard the
      witnesses and observed them testify, it is considered more capable of
      determining the reasonableness of the hypothesis produced by the
      evidence or lack thereof than is an appellate court.

(Footnote omitted.) McClain v. State, 301 Ga. App. 844, 847 (1) (689 SE2d 126)

(2010).

      (a) To establish theft by taking, the prosecution was required to show that the

defendant “unlawfully [took], or being in lawful possession thereof, unlawfully

appropriate[d] any property of another with the intention of depriving him of the

property, regardless of the manner in which the property [was] taken or appropriated.”


                                          3
OCGA § 16-8-2. In Jefferson v. State, 273 Ga. App. 61, 63 (1) (614 SE2d 182)

(2005), this Court stated that “[e]vidence of recent unexplained possession of stolen

property will authorize but not require the trier of fact to infer guilt and an appellate

court may find it sufficient in itself to support a conviction for the crime of theft by

taking.” (Citations and footnotes omitted; emphasis in original). The nearer the time

of the theft to the possession of the item stolen, the stronger the presumption of guilt.

Williamson v. State, 248 Ga. 47, 48 (1) (a) (281 SE2d 512) (1981). See also Jefferson,

supra, at 63-64 (1) (denying insufficient evidence claim where defendant possessed

and pawned stolen property within hours of the theft).

      Here, the prosecution showed that Moss and Stephens saw Newby sitting on

the motorcycle minutes after the theft and witnessed Newby’s flight on the

motorcycle when Moss confronted him. Moss and Stephens also identified Newby

in court as the person on the motorcycle when they approached. The reliability of

Moss and Stephens’s identification of Newby can hardly be doubted, as testimony

shows that Newby was not wearing a helmet during the confrontation. The fact that

Newby was found in possession of the motorcycle by the victim within minutes of the

theft makes his guilt even more convincing than that of the defendant in Jefferson,

supra. The prosecution’s case is further strengthened by Newby’s flight atop the

                                           4
motorcycle after the confrontation with Moss. See generally Bryson v. State, 316 Ga.

App. 512, 513-515 (1) (729 SE2d 631) (2012) (finding circumstantial evidence of

guilt where defendants fled from, inter alia, crime scene and victims in rest area after

committing armed robbery); Durham v. State, 309 Ga. App. 444, 445-446 (1) (710

SE2d 644) (2011) (a defendant’s efforts to avoid capture may offer circumstantial

evidence of guilt).

      These facts are sufficient to sustain Newby’s conviction for theft by taking. The

jury rejected the defense’s proffered explanation that Justin Newby stole the

motorcycle and, having heard the testimony of all the witnesses, was in a better

position than this Court to evaluate the facts. See McClain, supra, at 847 (1); London

v. State, 235 Ga. App. 30, 32 (1) (c) (508 SE2d 247) (1998) (“Whether or not a

defendant’s explanation is satisfactory or reasonable is a question for the jury”).

      (b) The relevant portion of Georgia’s aggravated assault statute requires the

prosecution to show that a defendant committed assault “[w]ith a deadly weapon or

with any object, device, or instrument which, when used offensively against a person,

is likely to or actually does result in serious bodily injury[.]” OCGA § 16-5-21 (b) (2).

The crime of assault in Georgia requires that the defendant “[a]ttempt[ed] to commit

a violent injury to the person of another; or [c]ommit[ted] an act which place[d]

                                           5
another in reasonable apprehension of immediately receiving a violent injury.”

OCGA § 16-5-20 (a). The prosecution need only show “that a defendant intended to

commit the act which in fact places another in reasonable apprehension of injury or

actually results in injury, not a specific intent to cause such apprehension or injury.”

(Citation and punctuation omitted.) Attaway v. State, 332 Ga. App. 375, 378 (1) (b)

(772 SE2d 821) (2015). The element of reasonable apprehension does not require that

the victim testify to having felt fear. See Lunsford v. State, 260 Ga. App. 818, 821 (2)

(581 SE2d 638) (2003).

      Here, the evidence presented by the State established the elements of assault

beyond a reasonable doubt. The prosecution need not show that Newby intended to

scare Moss, only that he intentionally committed the act which put Moss in

reasonable apprehension of receiving a violent injury. See Attaway, supra. Stephens

testified that Moss demanded the return of his motorcycle, and while Moss’s hands

were on the motorcycle, Newby jumped up and down on the motorcycle in an attempt

to make it start during the confrontation. When the motorcycle started, Moss moved

to avoid being hit when Newby “spinned off into his yard and left . . . burning

rubber.” Therefore, the prosecution showed that Newby acted intentionally. The State

also showed that Moss was in reasonable apprehension of receiving a violent injury.

                                           6
See Lunsford, supra. Moss testified that he jumped aside and put out his hands to

avoid being hit by the motorcycle when Newby took off on it. Both he and Stephens

testified that Moss would have been run over had he not moved out of its path. Moss

also testified as to the weight of the motorcycle, 200 or 300 pounds, and the high

speed at which Newby was traveling when he took off on it. Therefore, the

prosecution proved that Moss was “in reasonable apprehension of immediately

receiving a violent injury.” OCGA § 16-5-20 (a) (2). The prosecution’s charge, which

referred to the motorcycle as “an object which when used offensively against another

is likely to cause serious bodily injury,” was also correct. See generally Turner v.

State, 281 Ga. 487, 489 (1) (b) (640 SE2d 25) (2007) (finding that although an

automobile is not necessarily a deadly or offensive weapon, it may become one

depending on how it is used). Therefore, the prosecution proved the material elements

of aggravated assault beyond a reasonable doubt.

      Newby countered that he was not at his mother’s house on the day of the crimes

and, therefore, could not have been the person riding the motorcycle that nearly struck

the victim. Justin testified that Newby was not around the house that day. However,

Moss and Stephens gave the opposite testimony, identifying Newby as the person on

the motorcycle during the confrontation. Moss testified that Newby was not wearing

                                          7
a helmet during the confrontation, which lends further credence to his testimony, and

Moss identified Newby prior to trial when a police officer showed him Newby’s

driver’s license. As stated above, a jury is better equipped than this Court to evaluate

the credibility of witnesses. See McClain, supra, at 847 (1). As in Woodall v. State,

159 Ga. App. 832, 832 (285 SE2d 582) (1981), where this Court affirmed a

conviction for aggravated assault which was based on contradictory witness

testimony, the jury here heard the testimony of the State’s witnesses and found

Newby guilty despite testimony in his favor.

      This Court is bound to uphold the jury’s determination by the standard

provided in Jackson, supra. The evidence was sufficient to prove aggravated assault

and theft by taking beyond a reasonable doubt.

      2. Newby also raised the general grounds in his motion for new trial. OCGA

§§ 5-5-20, 5-5-21 empower the trial court to “sit as a thirteenth juror” when

considering a motion for new trial on these grounds. ( Citation omitted.) Conley v.

State, 329 Ga. App. 96, 100 (2) (763 SE2d 881) (2014). In so doing, the trial court

shall exercise its discretion in weighing the evidence to decide whether to grant a new

trial. Id. Even when, as above, evidence is sufficient to sustain a jury conviction, the

trial court may grant a new trial “[i]n any case when the verdict of a jury is found

                                           8
contrary to evidence and the principles of justice and equity. . . .,” OCGA § 5-5-20,

or “where the verdict may be decidedly and strongly against the weight of the

evidence even though there may appear to be some slight evidence in favor of the

finding.” OCGA § 5-5-21.

      Here, the testimony of Moss and Stephens was more than adequate to support

the verdict. Accordingly, the trial court did not abuse its discretion in denying

Newby’s motion for new trial based on the general grounds. See Rowland v. State,

228 Ga. App. 66, 68 (2) (491 SE2d 119) (1997). Therefore, we affirm the trial court’s

ruling denying Newby’s motion for new trial as to the general grounds.

      3. Newby also argues that he received ineffective assistance of counsel. He

bases this claim on trial counsel’s failure to present certain alibi witnesses, failure to

conduct a pretrial investigation, and failure to present an expert witness in cross-

racial identification. We find no error.

      An ineffective assistance of counsel argument requires satisfaction of a two-

pronged test: “First, the defendant must show that counsel’s performance was

deficient. . . . Second, the defendant must show that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct.

2052, 80 L.Ed.2d 674) (1984). For counsel’s performance to reach the required level

                                            9
of deficiency, the defendant must prove that “counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. In analyzing defendant’s showing, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance[.]” Id. at 689 (III) (A). Tactical decisions receive even greater

deference, only forming the basis of an ineffective assistance claim if a decision is “so

patently unreasonable that no competent attorney would have chosen it.” (Citations

omitted.) Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). However,

counsel does not automatically receive protection from complaints pertaining to

strategy or tactics if the decision was “an unreasonable one no competent attorney

would have made under the same circumstances.” (Citation and punctuation omitted.)

Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004).

      The prejudice prong of the Strickland test requires the defendant to show “that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, supra, at

694 (III) (B). Finally, in reviewing claims of ineffective assistance, “we accept the

trial court’s factual findings and credibility determinations unless clearly erroneous,

                                           10
but we independently apply the legal principles to the facts.” Hill v. State, 291 Ga.

160, 164 (4) (728 SE2d 225) (2012).

      (a) The tactical decision of whether to present an alibi defense “after thorough

investigation and client consultation[] is virtually unchallengeable[.]” (Citation

omitted.) Walker v. State, 280 Ga. App. 457, 462 (6) (a) (634 SE2d 93) (2006).

Newby claims that trial counsel’s failure to call Diana Daniels to testify as an alibi

witness prejudiced the defense. The trial court considered Daniels’s testimony at its

hearing on Newby’s motion for new trial. During the hearing on Newby’s motion,

Daniels first stated that she was at her home with Newby starting the night before the

events leading up to these crimes until late afternoon on the day of the crimes.

However, when questioned specifically about the date, she responded, “Oh, no. I

think it was – what was that day? I don’t know. I don’t know what day it was.” Trial

counsel also testified at the hearing that she did interview Daniels and that Daniels

told her that she dropped Newby off in the morning before the crime took place and

could not verify his location after that point. Trial counsel testified that she decided

not to call Daniels as a witness because she did not believe her testimony would be

helpful.



                                          11
      Clearly, trial counsel made a reasonable strategic decision not to call Daniels

as an alibi witness. The trial court did not err. See Jones v. State, 315 Ga. App. 427,

433 (3) (727 SE2d 216) (2012) (denying claim of ineffective counsel where counsel

did not present alibi witnesses after none of the witnesses he interviewed could give

him information on defendant’s whereabouts at the time of the crime).

      (b) Newby also contends that trial counsel’s failure to call someone named

Tracy Poore as an alibi witness prejudiced the defense. However, Newby made no

proffer as to Poore’s testimony at the motion for new trial hearing.

      “To prove the prejudice prong of Strickland on a claim that trial counsel
      failed to call a witness, a defendant must show the witness’s expected
      testimony by presenting either live testimony of the witness, an affidavit
      from the witness, or a legally recognized substitute for the uncalled
      witness’s testimony . . . [Newby] failed to produce an affidavit or any
      other legally recognized substitute for [their] testimony. Accordingly,
      [Newby] failed to establish his claim of ineffective assistance of counsel
      on this ground.”

(Citations omitted.) Janasik v. State, 323 Ga. App. 545, 554 (4) (b) (746 SE2d 208)

(2013).

      (c) Newby also argues that he was denied effective assistance of counsel

because of trial counsel’s failure to conduct a pretrial investigation, which led to her

subsequent failure to adequately cross-examine witnesses. This part of the


                                          12
enumeration appears to reference both potential alibi witnesses as well as other

unnamed witnesses. However, Newby presents no proffer as to how these witnesses

would have testified; he does not even identify them. Nor does he proffer any

specifics as to what a more thorough investigation would have revealed. Newby has

failed to meet his burden of showing either prejudice or deficient performance. Shank

v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d 246) (2012) (finding no ineffective

assistance where defendant failed to show what a more thorough investigation would

have shown); Janasik, supra.

      (d) Newby also claims that he was denied effective assistance of counsel

because trial counsel failed to call an expert witness in cross-racial eyewitness

identification. Newby did not raise this issue in his motions for new trial, nor did the

trial court address it. Thus, we do not consider it on appeal. See Garrett v. State, 285

Ga. App. 282, 287 (5) (e) (645 SE2d 718) (2007).

      For the foregoing reasons, we affirm the trial court’s denial of Newby’s motion

for new trial on the basis of ineffective counsel.

      Judgment affirmed. Doyle, C. J., and Andrews, P. J., concur.




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