                                 THIRD DIVISION
                                ELLINGTON, P. J.,
                             GOBEIL and COOMER, 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


                                                                   November 19, 2018




In the Court of Appeals of Georgia
 A18A1439. WALKER v. THE STATE.

       ELLINGTON, Presiding Judge.

       A Burke County jury found John Walker guilty beyond a reasonable doubt of

possession of a knife during the commission of a crime involving the person of

another, OCGA § 16-11-106 (b) (1); family violence battery, OCGA § 16-5-23.1 (a),

(f); and cruelty to children in the third degree, OCGA § 16-5-70 (d). Following the

denial of his motion for a new trial, Walker appeals, contending that the verdict must

be set aside because it was based on perjured testimony. In addition, he contends that

the evidence was insufficient to find that he possessed a knife during the offenses at

issue, that the trial court erred in admitting his statement to investigators, and that the

trial court erred in charging the jury regarding the elements of the offense of family

violence battery. For the reasons explained below, we affirm.
      1. Walker contends that the only evidence that he possessed a knife during a

crime against a person, as charged, was the testimony of the battery victim, which she

later testified had been a lie. He argues that, as a result, there was insufficient

evidence to support a guilty verdict for possession of a knife during the commission

of a crime. On appeal from a criminal conviction, the appellate court

      view[s] the evidence in the light most favorable to the verdict[,] and an
      appellant no longer enjoys the presumption of innocence. [The appellate
      court] determines whether the evidence is sufficient under the standard
      of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
      (1979), and does not weigh the evidence or determine witness
      credibility. Any conflicts or inconsistencies in the evidence are for the
      jury to resolve. As long as there is some competent evidence, even
      though contradicted, to support each fact necessary to make out the
      State’s case, [the appellate court] must uphold the jury’s verdict.


(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

      The record in this case shows that, on the first day of Walker’s trial, his

children’s mother testified that, during a prolonged violent attack on September 23,

2014, Walker slapped her face as she slept and then repeatedly struck her in the head

and face, pulled a knife on her, and threatened to kill her. He repeatedly threatened

to kill the children in front of her and held the knife to the baby’s throat. The victim


                                           2
testified that, as a result of the blows to her head, her eardrums were ruptured and she

had a black eye, a split lip, and facial swelling. This beating was the culmination of

four years of physical abuse which often included threats with weapons, with each

attack being followed by a cooling off period and an apology from Walker. The

victim testified that she stayed with Walker despite the abuse because she loved him

and wanted the children to have their father. She also testified that she felt that she

provoked Walker’s abuse. The victim stated that she did not want to testify against

Walker and was only in court because the police went and brought her in after she

failed to report to court per the subpoena. She testified that prosecutors threatened to

lock her up and put her children in foster care if she did not testify.

      In addition to testimony from the victim, the jury heard evidence during the

State’s case-in-chief that the victim’s five-year-old son witnessed part of the attack

and that he reported to the school nurse, his classroom teacher, and a guidance

counselor that Walker threw his mother against the wall and threatened to kill her.

The State also introduced police photographs showing bruising and other injuries to

the victim’s face after the incident. Another witness testified that the victim sustained

a black eye, a split lip, and other visible injuries.

      Before court reconvened for the second day of the trial, the victim talked to

                                            3
Walker’s defense attorney and members of his family and decided to testify in

Walker’s defense. Upon being called by the defense, the victim testified that parts of

her testimony on the first day of the trial had been a lie. She reiterated that she felt

pressured to testify against Walker by threats that her children would be taken away

from her if she changed her story from her pretrial statement. The victim confirmed

that she woke up that day to Walker slapping her in the face, but she blamed a

fistfight with another woman for the visible injuries to her face. She testified that her

son who testified on the first day did see Walker hit her that day, but also testified that

her son was a liar. She specifically denied that Walker had used a knife and

threatened to kill her and the baby, and she stated that she did not want him

prosecuted for that.

       The jury’s guilty verdicts show that the jury credited the victim’s testimony and

the corroborating evidence that Walker beat and threatened her and held a knife

during the attack and show that the jury discredited the victim’s contradictory

testimony that someone else bruised her face and that Walker never pulled a knife on

her.1 Although the victim recanted parts of her inculpatory testimony the following

       1
        See Gibbons v. State, 248 Ga. 858, 863 (286 SE2d 717) (1982) (“[T]he jury
can determine whether to believe [a witness’s] present testimony, the prior testimony
– or neither.”); Pierre v. State, 330 Ga. App. 782, 784 (769 SE2d 533) (2015) (“[A]

                                            4
day while the trial was still in progress, the jury was authorized to find Walker guilty

beyond a reasonable doubt of the crimes charged. Pierre v. State, 330 Ga. App. 782,

784 (1) (769 SE2d 533) (2015).

      2. Walker contends that the verdict was based on the perjured testimony of the

battery victim and must be set aside pursuant to OCGA § 17-1-4.2 As the Supreme



jury is authorized to believe the victim’s pre-trial statements rather than her in-court
disavowal.”) (footnotes and punctuation omitted); Jones v. State, 258 Ga. App. 852,
853-854 (576 SE2d 18) (2002) (“Even though a witness may recant on the stand, his
prior inconsistent statements constitute substantive evidence on which the jury may
rely.” The resolution of conflict between a witness’s prior statement and their trial
testimony “is solely a jury issue.”) (punctuation and footnotes omitted); see also
Logan v. State, 265 Ga. App. 134, 135 (1) (593 SE2d 14) (2003) (Any conflict in a
witness’s testimony is a matter of credibility for the jury to resolve.); Robinson v.
State, 246 Ga. App. 576, 577 (1) (541 SE2d 660) (2000) (accord).
      2
        OCGA § 17-1-4 provides:
      Any judgment, verdict, rule, or order of court which may have been
      obtained or entered shall be set aside and be of no effect if it appears
      that the same was entered in consequence of corrupt and willful perjury.
      It shall be the duty of the court in which the verdict, judgment, rule, or
      order was obtained or entered to cause the same to be vacated upon
      motion and notice to the adverse party; but it shall not be lawful for the
      court to do so unless the person charged with perjury shall have been
      duly convicted thereof and unless it appears to the court that the verdict,
      judgment, rule, or order could not have been obtained and entered
      without the evidence of the perjured person, saving always to third
      persons innocent of such perjury the rights which they may lawfully
      have acquired under the verdict, judgment, rule, or order before the same
      shall have been actually vacated.

                                           5
Court of Georgia has explained,

       [g]enerally, a recantation of a witness’ trial testimony [after judgment is
       entered] is merely impeaching of the trial testimony and does not
       establish a convicted defendant’s right to a new trial, even if the witness
       states under oath that his prior trial testimony was false. . . . An
       exception to that rule is created when a trial witness is convicted of
       perjury with respect to his trial testimony and the trial court concludes
       that the guilty verdict could not have been obtained without the perjured
       testimony. The only other exception to the rule against setting aside a
       verdict based on a challenge to trial testimony is where there can be no
       doubt of any kind that the State’s witness’ testimony in every material
       part is purest fabrication. That exception is met when the witness’
       testimony is shown to be an impossibility.


(Citations and punctuation omitted.) Lewis v. State, 301 Ga. 759, 762-763 (2) (804

SE2d 82) (2017). See also Fugitt v. State, 251 Ga. 451, 452-453 (1) (307 SE2d 471)

(1983) (considering OCGA § 17-1-4 in conjunction with former OCGA § 24-9-853).

       The record shows that the day after the trial court entered judgment in Walker’s

case, the State secured an indictment against the battery victim for two counts of

perjury, alleging that she testified falsely on the first day of Walker’s trial to the effect

       3
        See former OCGA § 24-9-85 (b) (repealed effective January 1, 2013) ( “If a
witness shall willfully and knowingly swear falsely, his testimony shall be
disregarded entirely, unless corroborated by circumstances or other unimpeached
evidence.”).

                                             6
that Walker threatened to kill her and the children and brandished a knife at her and

that she testified falsely to the opposite effect on the second day of trial. The victim

entered a negotiated guilty plea to the second count of perjury and received probation

under the First Offender Act, OCGA § 42-8-60 et seq.

      In this case, even treating her guilty plea and receipt of probation as a first

offender as a conviction,4 the victim pleaded guilty to committing perjury with respect

to her exculpatory trial testimony, not her inculpatory testimony during the State’s

case-in-chief. Under the circumstances, the trial court could not conclude that the

jury’s guilty verdicts could not have been obtained without the victim’s admittedly

perjured exculpatory testimony for the defense. Conversely, stated in the positive, the

trial court could only conclude that the guilty verdict could have been obtained

without the perjured testimony. Walker contends, however, that OCGA § 17-1-4

speaks in terms of whether a verdict could have been obtained “without the evidence

      4
         Under Georgia law,
       [a] first offender’s guilty plea does not constitute a “conviction” as that
       term is defined in the Criminal Code of Georgia. Rather, under the first
       offender statute, until an adjudication of guilt is entered, there is no
       conviction. The case has, in effect, been suspended during the period of
       probation until eventually the probation is either revoked or it is
       discharged; unless it is revoked, there is no conviction.
(Citations, punctuation, and emphasis omitted.) Collins v. State, 338 Ga. App. 886,
889 (1) (792 SE2d 134) (2016).

                                           7
of the perjured person” (in this case, the victim), rather than in terms of the perjured

testimony (in this case, the victim’s exculpatory testimony) and, based on this, that

there is no evidence that he possessed a knife. But, as quoted above, the Supreme

Court has explained that the issue is whether the verdict could have been obtained

without the perjured testimony. Lewis v. State, 301 Ga. at 762-763 (2). Because, in the

words of the statute, the verdict in this case was not obtained “in consequence of

corrupt and willful perjury,”5 but rather despite the victim’s perjury, OCGA § 17-1-4

does not provide a basis for setting aside the judgment in this case. Nations v. State,

290 Ga. 39, 41 (2) (717 SE2d 634) (2011); Richardson v. Roberts, 25 Ga. 671, 675

(1858).

      3. Walker contends that he invoked his right to remain silent midway through

a custodial interrogation and that the trial court therefore erred in admitting into

evidence his statement that he held a knife during the incident.6

              In examining the operation of the Fifth Amendment’s privilege
      against self-incrimination, the United States Supreme Court has made

      5
          OCGA § 17-1-4 (emphasis supplied).
      6
        The record shows that during his custodial statement Walker admitted that he
slapped the victim and knew that it was wrong and said that he took a knife from her
during the ensuing altercation in order to prevent her from committing suicide but
stated that he put the knife down on the table as soon as he got it away from her.

                                           8
      clear that when an individual in custody indicates in any manner, at any
      time prior to or during questioning, that he wishes to remain silent, the
      interrogation must cease. At this point, that individual has shown that he
      intends to exercise his Fifth Amendment privilege; any statement taken
      after the person invokes his privilege cannot be other than the product
      of compulsion. In this regard, [the Supreme] Court [of Georgia] has held
      that an assertion of the right to remain silent during custodial
      interrogation must be unambiguous and unequivocal before
      interrogators are required to stop their questioning. Resolution of that
      question depends on whether the accused articulated a desire to cut off
      questioning with sufficient clarity that a reasonable police officer in the
      circumstances would understand the statement to be an assertion of the
      right to remain silent. An accused will be found to have unambiguously
      and unequivocally asserted his right to remain silent where he declares
      that he is finished talking or otherwise expresses the clear desire for
      police questioning to cease.


(Citations and punctuation omitted.) Mack v. State, 296 Ga. 239, 242 (1) (765 SE2d

896) (2014).7

      Walker points to the following colloquy during his custodial interrogation:

      Investigator A:      Do you wish to talk to us about what happened on the
                           23rd?
      Walker:              Man. I don’t know if I should talk . . . I don’t want to
                           commit myself at the same time.


      7
          See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LEd2d 694) (1966).

                                          9
      Investigator A:     It’s totally up to you.
      Investigator B:     It’s totally up to you as far as you making a statement.
      Walker:             I want to defend myself at the same time.
      Investigator B:     Right.
      Investigator A:     You can do that through your lawyer, if that’s what you
                          want. Or you can talk to us.
      Investigator B:     It’s totally up to you. We can’t force you to answer
                          questions. We can ask you questions. If you want to
                          answer, you can answer. You don’t have to answer, if you
                          don’t want to, if it’s something you don’t want to answer.
                          But we’re just here to try to get your side of what happened
                          and go from there.
      Walker:             I ain’t trying to get in no trouble, sir.
      Investigator B:     Well, we understand that. Most people don’t try to get in
                          trouble, but things happen that lead to trouble.
      Walker:             Yes, sir.

Having reviewed the recording, we discern no declaration that Walker was finished

talking or other expression of the clear desire for police questioning to cease.

Williams v. State, 290 Ga. 418, 420 (2) (721 SE2d 883) (2012) (An arrestee’s

statement “‘I can’t go on answering these questions’ was not an unambiguous and

unequivocal assertion of the right to remain silent.”); Perez v. State, 283 Ga. 196,

200-201 (657 SE2d 846) (2008); State v. Andrade, 342 Ga. App. 228, 231 (803 SE2d

118) (2017). Accordingly, Walker has shown no basis for reversal.

      4. Walker contends that the trial court’s jury instructions failed to include all

of the elements of the offense of family violence battery as charged, specifically the


                                         10
definition of “visible bodily harm” under OCGA § 16-5-23.1.

      Because Walker made no objection at the time of the charge, we review this

claim of error under the “plain error” standard of review. Hughley v. State, 330 Ga.

App. 786, 788 (2) (769 SE2d 537) (2015).8 Walker has the heavy burden of

demonstrating the following four elements:

      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.

      8
        The State contends that, because Walker “never argued that the trial court’s
failure to charge on the definition of battery was plain error,” this Court is
“preclud[ed] from passing on this issue now[,]” citing State v. Easter, 297 Ga. 171
(773 SE2d 181) (2015). This argument is disingenuous at best. As explained in State
v. Easter, the appellate court is “required to consider whether the [trial] court’s jury
instruction constitutes plain error” where the appellant “properly enumerate[s] and
argue[s] the issues on appeal.” (Citation and punctuation omitted.) 297 Ga. at 173 (1).
Although Walker did not expressly refer to the plain-error standard of review in his
enumeration of errors, he did refer to it in his brief when listing the standards of
review and in the argument section of his brief.

                                          11
(Citation, punctuation and footnote omitted.) Id. at 789 (2).

      The indictment charged that Walker committed family violence battery by

intentionally causing the victim “visible bodily injury” by slapping and hitting her.

OCGA § 16-5-23.1 (a) provides: “A person commits the offense of battery when he

or she intentionally causes substantial physical harm or visible bodily harm to

another.” OCGA § 16-5-23.1 (f) defines “family violence battery,” inter alia, as the

offense of battery committed between “persons who are parents of the same child.”

OCGA § 16-5-23.1 does not define “substantial physical harm” but in subsection (b)

defines “visible bodily harm” as “bodily harm capable of being perceived by a person

other than the victim and may include, but is not limited to, substantially blackened

eyes, substantially swollen lips or other facial or body parts, or substantial bruises to

body parts.”

      The trial court charged the jury as follows:

      [Walker] is . . . charged with family violence. I charge you that the
      Official Code of Georgia defines family violence as meaning the
      occurrence of one or more of the following acts between persons who
      are the parents of the same child: any felony or commission of offense
      of battery. . . . [I]t’s alleged that Mr. Walker committed the crime of
      family violence battery, a misdemeanor, for that [he] . . . did
      intentionally cause physical bodily injury to [the victim], who has a

                                           12
      child with the accused, by slapping and hitting [the victim.]


The trial court did not define “battery” or “visible bodily harm.”

      Because Walker was charged with committing the offense of family violence

battery by causing “visible bodily injury,” the court misspoke when it instructed the

jury that Walker was charged with committing the offense by cause “physical bodily

injury.” This flaw was ameliorated by the fact that the court instructed the jury that

it was authorized to find Walker guilty only if it found beyond a reasonable doubt that

he committed the offense as charged in the indictment and sent both the indictment

and the instructions out with the jury. In addition, because the Criminal Code

provides a definition of “visible bodily harm,” it is preferable to charge the jury as to

that definition, as in the pattern instructions.9 Having reviewed the entire record,

however, we do not find it likely that these technical errors and omissions affected

the outcome of the trial court proceedings. Hornbuckle v. State, 300 Ga. 750, 755 (4)

(797 SE2d 113) (2017); Christensen v. State, 245 Ga. App. 165, 166 (1) (a) (537

SE2d 446) (2000); see Green v. State, 291 Ga. 287, 294 (8) (a) (728 SE2d 668)

(2012) (“The general rule . . . is that the existence of a mere verbal inaccuracy in a


      9
        See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2.22.11 (4th
ed., 2007, updated August 2018).

                                           13
jury instruction, resulting from a palpable ‘slip of the tongue’ and which could not

have misled or confused the jury will not provide a basis for reversal of a defendant’s

conviction.”) (citation and punctuation omitted). Because Walker failed to establish

all four prongs of the applicable test for plain error, we affirm.

      Judgment affirmed. Gobeil and Coomer, JJ., concur.




                                          14
