                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, 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


                                                                    October 25, 2019




In the Court of Appeals of Georgia
 A19A1575. FORDHAM v. THE STATE.

      MARKLE, Judge.

      Following a jury trial, Andrew Fordham was convicted of two counts of

aggravated battery and one count of aggravated assault. Fordham appeals his

conviction and from the trial court’s denial of his motion for new trial, as amended,

arguing, as is relevant here, that (1) he was denied his constitutional right to be

present at all critical stages of the proceeding, (2) he was denied effective assistance

of counsel because his trial counsel failed to object when a witness improperly

expressed his opinion on the ultimate issue in the case, and (3) the trial court erred by

failing to merge his aggravated battery and aggravated assault convictions for

purposes of sentencing. After a through review of the record, we affirm the trial

court’s denial of the motion for new trial, finding that Fordham was not deprived of
his right to be present at all critical stages of the proceedings, nor was he denied

effective assistance of counsel. However, because the aggravated battery counts and

the aggravated assault count merged, we vacate the sentence and remand for re-

sentencing consistent with this opinion.

        Viewing the evidence in the light most favorable to the verdict, Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the record shows that,

in April 2013, Fordham was in a six-year relationship with his then girlfriend, C. S.

On April 28, 2013, Fordham and C. S. were spending the weekend together at her

home when Fordham went into the bathroom, presumably to take a shower. He called

to C. S. to bring him a towel because he had spilled water on the floor. As C. S.

approached the bathroom door, she noticed Fordham was holding a bowl, and he

splashed the contents, later discovered to be sulfuric acid drain cleaner, onto C. S.’s

face and upper body. C. S. begged Fordham to rinse her off with water, but he

refused. Fordham eventually called 911.1 The 911 operator instructed Fordham to

rinse C. S. off and he replied that he had, but Fordham told C. S. that he had been told

not to rinse her off.


        1
            The recording of the 911 call was admitted into evidence and played for the
jury.

                                             2
      Emergency Medical Technicians (“EMTs”) arrived at C. S.’s home, assessed

her condition, and took her outside into the rain to rinse the chemical off of her. C.

S. was subsequently taken to Grady Hospital, where she was placed in a medically-

induced coma for two months. C. S. suffered chemical burns to 20 percent of her

body, including her face and upper chest; she is legally blind in her right eye; and she

has undergone at least 13 reconstructive surgeries. She also had to learn to walk

again.2

          On the day of the incident, detectives took pictures and measurements of the

chemical splash marks, and noticed large burn patterns on the carpet outside the

bathroom and extending up to eight feet on the walls. One EMT stated that something

about the scene did not seem right to him. Another EMT indicated that the story of

how the chemical came into contact with C. S. did not make sense, and that

Fordham’s explanation kept changing as the EMTs assessed C. S. and the scene.

Investigators from the Henry County police department crime scene unit conducted




      2
          Photographs of C. S.’s injuries were admitted at trial and shown to the jury.

                                           3
re-enactments of the scene in C. S.’s bathroom and hallway.3 The re-enactments were

inconsistent with Fordham’s claim that he accidentally spilled the liquid onto C. S.

        Fordham testified in his own defense at trial, stating that the incident was an

accident, and that he slipped on the wet floor and spilled the liquid on C. S.

        The jury convicted Fordham of two counts of aggravated battery (Counts 1 and

2) and one count of aggravated assault (Count 3).4 The trial court sentenced him to

20 years’ probation as to Count 1, to run consecutive to the sentence imposed on

Counts 2 and 3; 20 years’ imprisonment on Count 2, to run concurrent with Count 3;

and 20 years’ imprisonment on Count 3. Fordham filed a motion for new trial, an

amended motion for new trial, and a second amended motion for new trial. Following

a hearing, the trial court denied the motions. This appeal followed.

        1. In his first enumeration of error, Fordham argues that his exclusion from the

bench conferences during jury selection, at which certain jurors were excused for

cause, violated his constitutional right to be present at all critical stages of the

proceeding. We disagree and find that Fordham acquiesced to his absence.

        3
            The videotaped re-enactments were admitted into evidence and played for the
jury.
        4
        Fordham was also charged with burglary in the first degree. However, the trial
court directed a verdict of not guilty on this count.

                                             4
      It is well-established that “[p]roceedings at which the jury composition is

selected or changed are . . . critical stage[s] at which the defendant is entitled to be

present.” (Citations omitted.) Zamora v. State, 291 Ga. 512, 518 (7) (b) (731 SE2d

658) (2012). As such, Fordham “clearly had a constitutional right to be present during

the proceedings at which one of the jurors trying his case was removed.” Id.; see also

Williams v. State, 300 Ga. 161, 165 (3) (794 SE2d 127) (2016) (although defendant

was present when juror asked to be excused for hardship and when court announced

that juror was excused for that reason, he had a right to be present during the bench

conference at which juror’s excusal was discussed); Ramirez v. State, 345 Ga. App.

611, 616 (2) (814 SE2d 751) (2018) (recognizing a defendant’s right to be present at

a bench conference where the topic of striking a potential juror is discussed).

      Nevertheless, a defendant is free to waive this right, either personally or

through counsel. See Williams, 300 Ga. at 165 (3).

      For a waiver by counsel to be binding on the defendant, it must be made
      either at the defendant’s express direction or in open court in the
      defendant’s presence; if it is not, however, the waiver may be
      subsequently made effective by the defendant’s acquiescence.
      Acquiescence, which is a tacit consent to acts or conditions, may occur
      when counsel makes no objection and a defendant remains silent after



                                           5
      he or she is made aware of the proceedings occurring in his or her
      absence.


(Citations and punctuation omitted.) Id. at 165-166 (3); see also Murphy v. State, 299

Ga. 238, 240-241 (2) (787 SE2d 721) (2016). Furthermore, our Supreme Court has

explained that a defendant’s failure to object to his exclusion from a bench

conference, after the trial court has advised those in the courtroom, including the

defendant, about the topic discussed constitutes acquiescence. See Heywood v. State,

292 Ga. 771, 775 (3) (743 SE2d 12) (2013); see also Jackson v. State, 278 Ga. 235,

237 (3) (599 SE2d 129) (2004) (holding that appellants acquiesced in the proceedings

when their counsel made no objection to their exclusion from an in-chambers

conference and appellants remained silent after the subject was brought to their

attention).

      Here, during jury selection, the prosecutor asked potential jurors if there was

any prejudice or bias resting upon their minds either for or against the accused. After

several jurors raised their hands in response, the trial court held a bench conference

with each individual potential juror. The prosecutor and defense counsel were present

for these conferences.5 After each bench conference, the potential juror was excused.

      5
          The bench conferences were not transcribed.

                                          6
Jury selection resumed, and, at the conclusion of questioning, counsel for both sides

and the trial court discussed in open court the dismissal of certain potential jurors

who had already formed an opinion about the case or had a hardship, and the trial

court reviewed with counsel the three jurors previously struck for cause. Once the

jury was selected, the trial court asked both the prosecutor and defense counsel if

there was any objection to the jury selection process, and Fordham’s trial counsel did

not object. Fordham was present throughout jury selection with his attorney.

      On this record, we conclude Fordham was aware of the subject matter of the

proceedings from which he was excluded, and he acquiesced to counsel’s waiver of

his presence by failing to voice any objection, either directly or through counsel, to

his absence at the bench conferences at which the jurors’ excusals were discussed.

See Williams, 300 Ga. at 166 (3); see also Murphy, 299 Ga. at 240-241 (2); Heywood,

292 Ga. at 775 (3). Accordingly, this argument is without merit.

      2. Fordham next argues that he was denied effective assistance of counsel when

his attorney failed to object to the EMT’s testimony in which he opined that the

incident was not an accident because such testimony improperly invaded the province

of the jury. We conclude that Fordham has not met his burden.



                                          7
      To succeed on a claim that counsel was constitutionally ineffective,
      [Fordham] must show both that his attorney’s performance was
      deficient, and that he was prejudiced as a result. Under the first prong of
      this test, counsel’s performance will be found deficient only if it was
      objectively unreasonable under the circumstances and in light of
      prevailing professional norms. And under the second prong, prejudice
      is demonstrated only where there is a reasonable probability that, absent
      counsel’s errors, the result of the trial would have been different. A
      reasonable probability is defined as a probability sufficient to undermine
      confidence in the outcome. Failure to satisfy either prong of the
      Strickland test is sufficient to defeat a claim of ineffective assistance,
      and it is not incumbent upon this Court to examine the other prong. And
      although both the performance and prejudice components of an
      ineffectiveness inquiry involve mixed questions of law and fact, a trial
      court’s factual findings made in the course of deciding an ineffective
      assistance of counsel claim will be affirmed by the reviewing court
      unless clearly erroneous.


(Citations and punctuation omitted.) Green v. State, 302 Ga. 816, 817 (2) (809 SE2d

738) (2018).

       Fordham’s sole defense at trial was that the incident that caused C. S.’s

injuries was an accident, and he asserts that his trial counsel should have objected

when the EMT intimated otherwise. “Georgia law generally precludes a witness from

testifying as to his or her opinion regarding an ultimate issue in the case because to


                                          8
do so would invade the province of the jury.” (Citation omitted.) Patterson v. State,

327 Ga. App. 695, 699 (4) (761 SE2d 101) (2014); see also Chamberlain v. State, 347

Ga. App. 775, 782 (3) (b) (819 SE2d 303) (2018). However, “[a] witness who

personally observed the event to which [he] is testifying may state [his] impressions

drawn from, and opinions based upon, the facts and circumstances observed by

[him].” (Citation omitted.) Patterson, 327 Ga. App. at 699 (4).

      At trial, when asked about the victim and the scene, one of the responding

EMTs testified that his observations “kind of threw me off to where it just didn’t

seem right.” The EMT stated that, in viewing the bathroom scene, hearing Fordham’s

comments at the scene, and observing the liquid in the coffee cup, “[t]he amount that

was used, stating that it was an accident. And it just didn’t make any sense of why

you would put that kind of liquid in something that you drink out of or eat out of.”

      Here, Fordham has not shown how counsel’s failure to object to this testimony

was deficient. The EMT merely gave his personal opinion of the event based on his

observations of the scene. His statement did not invade the jury’s province as to the

ultimate issue in the case because he never stated that the incident was not an

accident. In this regard, an objection to this challenged testimony “would have been



                                         9
meritless, and failure to make a meritless objection cannot be evidence of ineffective

assistance of counsel.” Chamberlain, 347 Ga. App. at 783 (3) (b).

      Moreover, at the motion for new trial hearing, trial counsel explained that he

did not object to the EMT’s testimony because “it just didn’t seem significant to

object to it.” Counsel further stated that his interpretation of the EMTs’ cumulative

testimony was that they were relying on C. S.’s initial impression that the incident

was an accident, but that they could not tell if it was an accident. Trial counsel thus

made a strategic decision not to object to the EMT’s testimony because he felt it

supported his defense theory that the incident was, in fact, an accident. “[T]rial tactics

and strategy . . . are almost never adequate grounds for finding trial counsel

ineffective unless they are so patently unreasonable that no competent attorney would

have chosen them.” (Citation and punctuation omitted.) Fleming v. State, __ Ga. __

(830 SE2d 129, 138 (5)) (2019); see also Thomas v. State, 284 Ga. 647 650 (3) (b)

(670 SE2d 421) (2008) (“As a general rule, matters of reasonable trial strategy and

tactics do not amount to ineffective assistance of counsel.”) (citation omitted).

“Decisions as to whether to interpose certain objections fall within the realm of trial

tactics and strategy and usually provide no basis for reversal of a conviction.” Goldey

v. State, 289 Ga. App. 198, 199 (2) (a) (656 SE2d 549) (2008). Fordham has not

                                           10
shown that his trial counsel’s strategy was unreasonable. Goldey, 289 Ga. App. at 199

(2) (a). Thus, Fordham has not shown that counsel’s performance was deficient, and,

therefore, he has not met his burden to show ineffective assistance of counsel.

      3. Finally, Fordham argues that the trial court erred in sentencing him on both

aggravated battery counts as well as on aggravated assault based on a single unlawful

act, and that the counts should have merged into one for purposes of sentencing. The

State concedes that Fordham must be resentenced, and we agree.

      “The doctrine of merger precludes the imposition of multiple punishments

when the same conduct establishes the commission of more than one crime. Whether

offenses merge is a legal question, which we review de novo.” (Citations omitted.)

Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011).

      While an accused may be prosecuted for more than one crime arising
      out of the same criminal conduct, he may not be convicted of more than
      one crime arising out of the same criminal conduct where one crime is
      included in the other. A crime is included in the other when: (1) It is
      established by proof of the same or less than all the facts or a less
      culpable mental state than is required to establish the commission of the
      crime charged; or (2) It differs from the crime charged only in the
      respect that a less serious injury or risk of injury to the same person,
      property, or public interest or a lesser kind of culpability suffices to
      establish its commission. With respect to subsection (1), the “required

                                         11
      evidence test” is utilized to determine whether multiple convictions are
      precluded because one of the crimes was established by proof of the
      same or less than all the facts that were required to establish the other
      crime.


(Citations and punctuation omitted.) Regent v. State, 299 Ga. 172, 175 (787 SE2d

217) (2016); see also OCGA § 16-1-6; OCGA § 16-1-7.6

      Here, Fordham was charged with two counts of aggravated battery against C. S.

for causing bodily harm to her when he threw the drain cleaner on her, seriously

disfiguring her head and rendering her eye useless. He was also charged with

aggravated assault against C. S. for using the drain cleaner as an offensive weapon,

which was likely to result in serious bodily injury, when he threw it on her. The

evidence was sufficient to support the convictions on all three counts. However, the

trial court sentenced Fordham separately on these counts.

      As to the two counts of aggravated battery, both counts were accomplished by

the single act of throwing acid on C. S. and, therefore, one count should have merged



      6
         Under OCGA § 16-1-6 (2), a crime is included in another crime when “it
differs from the crime charged only in the respect that a less serious injury or risk of
injury to the same person, . . . or a lesser kind of culpability suffices to establish its
commission.” OCGA § 16-1-7 (a) (1) provides that the accused may not be convicted
of more than one crime if one crime is included in another.

                                           12
into the other for purposes of sentencing. See Gonzales v. State, 298 Ga. App. 821,

823 (1) (681 SE2d 248) (2009) (merger required where the two counts of aggravated

battery resulted from the single act of pushing the victim out of a moving car);

compare Eskew v. State, 309 Ga. App. 44, 48-49 (4) (709 SE2d 893) (2011) (trial

court did not err in sentencing Eskew on both counts of aggravated battery where the

act of fracturing the child’s skull was a separate act from violently shaking the child).

      As to the charge of aggravated assault, this count likewise was based on the

single criminal act of Fordham throwing acid on C. S. It required proof that Fordham

threw the acid, a weapon likely to result in serious bodily injury, and differs from the

aggravated battery counts only with respect to the specificity of the injury or risk of

injury C. S. actually suffered because the battery counts alleged disfigurement or

rendering a member of her body useless. Thus, as charged in the indictment, the

aggravated assault is included in the aggravated battery and should have merged for

purposes of sentencing. See Regent, 299 Ga. at 176.

      Accordingly, as the State concedes, we must vacate the sentence imposed on

these counts, and remand the case to the trial court for resentencing, consistent with

this opinion.



                                           13
      Judgment affirmed in part, vacated in part, and case remanded with direction.

Doyle, P. J., and Coomer, J., concur.




                                        14
