                             FIRST DIVISION
                              BARNES, P. J.,
                        MCMILLIAN and MERCIER, 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 2, 2017


In the Court of Appeals of Georgia
 A17A0010. COOPER v. THE STATE.

      BARNES, Presiding Judge.

      Following the denial of his motion for new trial, Jacquez M. Cooper appeals

his convictions for armed robbery, aggravated assault and possession of a firearm or

knife during the commission of a felony.1 He was sentenced to twenty years, to serve

twelve, for the robbery conviction, a concurrent sentence of twenty years probation

for the assault conviction, and a consecutive five-year sentence of probation for the

possession of a firearm or knife conviction.

      On appeal, Cooper contends that the evidence was insufficient to sustain his

convictions, and that the trial court’s charge on inference of guilt based on recent


      1
         This appeal was originally filed in the Supreme Court of Georgia. However,
upon finding that Cooper’s constitutional challenge did not fall within the ambit of
the Supreme Court’s jurisdiction, the appeal was transferred to this Court. We
therefore conclude that the constitutionality of OCGA § 5-3-20 is not properly an
issue in this appeal. See Zepp v. Mayor & Council of City of Athens, 255 Ga. 449, 450
(2) (339 SE2d 576) (1986).
possession of stolen property was unconstitutional as applied to his case, was an

improper comment on his guilt, and was in direct conflict with other jury charges.

Cooper also contends that trial counsel was ineffective, and that the trial court erred

in charging on accomplice liability.

      On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the defendant no longer enjoys a presumption of

innocence. Harris v. State, 307 Ga. App. 847, 847 (706 SE2d 702) (2011). This Court

“does not weigh the evidence or judge the credibility of the witnesses but only

determines whether the evidence to convict is sufficient under the standard of

Jackson v. Virginia [443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]”. (Citation

omitted.) Krauss v. State, 263 Ga. App. 488, 488 (1) (588 SE2d 239) (2003). Any

conflicts in the testimony of the witnesses “are a matter of credibility for the jury to

resolve. . . . So long as there is some competent evidence, even though contradicted,

to support each element of the State’s case, the jury’s verdict will be upheld.”

(Citations omitted.) Id.

      Viewed in this light, the evidence demonstrates that on October 7, 2014 at

approximately 1:30 a.m., the victim, who was homeless and walking toward an

overpass where he planned to sleep for the night, approached two men who were

                                           2
standing on the sidewalk. One man appeared to be arguing with someone on his cell

phone, and the other man was standing nearby. As he walked passed them, one of the

men pulled out a 9 millimeter pistol and struck the victim in the head. The man

followed the victim as he stumbled away into the street, and pointed the gun at the

victim and ordered him on the ground. The man on the cell phone did not follow them

into the street, but stayed on the sidewalk and did not intervene. The man asked for

his wallet, but the victim did not have one, so the man demanded his backpack. The

victim saw the man “quickly walk[] away across the street,” and heard a gunshot, but

did not see who fired the gun.

      The victim called 911 and responding officers noted that the victim appeared

very upset and that his face was bloody. An officer responding to a BOLO (be on the

lookout) for the suspects, located two men that matched the victim’s description

about a half-mile away from the crime scene. The men were sweating and out of

breath when police stopped them, and one of them, later identified as Cooper, was

wearing a backpack that matched the description of the one stolen from the victim,

and was also in possession of a 9 millimeter pistol. Cooper told police that he found

the backpack and gun on the side of the road. The victim was taken to the scene,

where he positively identified his backpack, the contents, and the two robbers. He

                                         3
also identified Cooper as the man who robbed him and assaulted him at trial. The

victim also told police that the men took $25 from his person, but later admitted that

he had lied and that no money was stolen from him.

      Cooper and the other man, later identified as Michael Odus, were indicted for

armed robbery, aggravated assault, and possession of a firearm or knife during the

commission of a felony. Following a joint trial, at which Odus testified, and Cooper

did not, Cooper was found guilty of all charges, and Odus was acquitted.

      1. Cooper contends that the evidence was insufficient to sustain his

convictions. We do not agree.

      In this case, the victim identified Cooper as one of the two robbers, and as the

robber who had struck him with a gun. See OCGA § 24-14-8 (“The testimony of a

single witness is generally sufficient to establish a fact.”) Moreover, within minutes

of the 911 call, Cooper was apprehended a short distance from the attack in

possession of the victim’s backpack and a 9 millimeter pistol. Even if, as Cooper

argues, the victim only assumed that Cooper was the one who struck him because he

was in possession of the gun, “[c]ircumstantial evidence of identity may be sufficient

to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.”

Onumah v. State, 313 Ga. App. 269, 272 (3) (721 SE2d 115) (2011).

                                           4
       Having considered the evidence above as well as other evidence presented at

trial under the standard appropriate for our review, we find it sufficient beyond a

reasonable doubt to prove that Cooper was the perpetrator of the crimes charged.

Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       To the extent that Cooper maintains that the trial court did not properly

exercise its discretion as the thirteenth juror in weighing the evidence, the trial court’s

statements in its order denying the motion for new trial specifically noted that, in

acting as the thirteenth juror pursuant to OCGA § 5-5-20 and OCGA § 5-5-21, it

“reviewed the record and [found] that the verdict is neither contrary to the law or the

evidence; in fact, the court finds the verdict is decidedly supported by the weight of

the evidence.” See OCGA §§ 5-5-20 and 5-5-21; Walker v. State, 292 Ga. 262 (2)

(statutes “afford the trial court broad discretion to sit as a ‘thirteenth juror’ and weigh

the evidence on a motion for new trial alleging these general grounds.”) (punctuation

and citation omitted.) “A trial judge’s denial of a motion for new trial on evidentiary

grounds will be reversed on appeal only if there is no evidence to support the

verdict.” (Citation and punctuation omitted)Parker v. State, 244 Ga. App. 419, 421

(2) (535 SE2d 795) (2000). We discern no such abuse in this case.



                                            5
      2. Cooper contends that the trial court’s charge on inference of guilt based on

recent possession of stolen property was unconstitutional as applied to his case

because it required him to provide a reasonable explanation for his possession of the

property and thus dispel an inference of guilt, which would violate his Fifth

Amendment privilege against self incrimination. We do not agree.

      The trial court instructed the jury that:

      [I]f you should find beyond a reasonable doubt that the crime of armed
      robbery has been committed as charged in this indictment and that
      certain personal property as set forth in the indictment was stolen as a
      result of such crime and if recently thereafter the defendant should be
      found in possession of any of the stolen property, that would be a
      circumstance along with all the other evidence from which you may
      infer guilt as to the charge of armed robbery as set forth in Count 1 of
      this indictment. If you find the evidence merits such an inference, you
      may not draw an inference of guilt if from the evidence there is a
      reasonable explanation of the possession of such property consistent
      with a plea of innocence which is a question solely for you, the jury, to
      determine.


Regarding the complained-about language in the charge,

      [i]t has long been settled in this state that recent unexplained possession
      of stolen property permits the jury to infer that the accused committed
      the theft. It should be emphasized that the recent unexplained possession


                                           6
      creates only a permissible inference of guilt of a “presumption of fact,”
      . . . which the jury may or may not draw. Whether the charge is
      fashioned in the language of “inferences” or “presumptions,” the
      technical import of the charge is the same, especially where the
      “presumption” is expressly qualified in the charge as one of evidence
      and not of law. Read in the light of the entire charge to the jury,
      including full charges on reasonable doubt, the [S]tate’s burden of proof
      and the presumption of innocence, that portion of the charge complained
      of here cannot be said to have either reduced the [S]tate’s burden of
      proving guilt or shifted to the petitioner the burden of proving his
      innocence. The charge, taken as a whole, left the burden of persuasion
      on the [S]tate.


(Citations and punctuation omitted.) Byrd v. Hopper, 234 Ga. 248, 250-51 (215 SE2d

251) (1975). Accordingly, this enumeration fails.

      3. Cooper further contends that the charge on inference of recent possession

was an improper comment on his guilt by the trial judge in violation of OCGA § 17-

8-57. We do not agree.

      OCGA § 17- 8-57, at the time of Cooper’s April 2015 trial provided:

      It is error for any judge in any criminal case, during its progress or in his
      charge to the jury, to express or intimate his opinion as to what has or
      has not been proved or as to the guilt of the accused. Should any judge
      violate this Code section, the violation shall be held by the Supreme
      Court or Court of Appeals to be error and the decision in the case

                                           7
      reversed, and a new trial granted in the court below with such directions
      as the Supreme Court or Court of Appeals may lawfully give.2


This Code section is violated only when the trial court’s instruction “considered as

a whole, assumes certain things as facts and intimates to the jury what the judge


      2
       Effective July 1, 2015, OCGA § 17-8-57 was amended to provide:
      (a) (1) It is error for any judge, during any phase of any criminal case,
      to express or intimate to the jury the judge’s opinion as to whether a fact
      at issue has or has not been proved or as to the guilt of the accused. (2)
      Any party who alleges a violation of paragraph (1) of this subsection
      shall make a timely objection and inform the court of the specific
      objection and the grounds for such objection, outside of the jury’s
      hearing and presence. After such objection has been made, and if it is
      sustained, it shall be the duty of the court to give a curative instruction
      to the jury or declare a mistrial, if appropriate. (b) Except as provided in
      subsection (c) of this Code section, failure to make a timely objection to
      an alleged violation of paragraph (1) of subsection (a) of this Code
      section shall preclude appellate review, unless such violation constitutes
      plain error which affects substantive rights of the parties. Plain error
      may be considered on appeal even when a timely objection informing
      the court of the specific objection was not made, so long as such error
      affects substantive rights of the parties.


      (c) Should any judge express an opinion as to the guilt of the accused,
      the Supreme Court or Court of Appeals or the trial court in a motion for
      a new trial shall grant a new trial.”

                                           8
believes the evidence to be.” (Punctuation and footnote omitted.) Martinez v. State,

325 Ga. App. 267 (750 SE2d 504) (2013).

      Here, the trial court’s comments did not constitute a comment before the jury

on a disputed issue of fact or intimate an opinion about Cooper’s guilt, but merely

instructed the jury on the permissible inference of possession. The trial court also

instructed the jury that “by no ruling or comment that the court has made during the

progress of the trial has the court intended to express any opinion from the facts of

the case, upon the credibility of the witnesses, upon the evidence, or upon the guilt

or innocence of the defendant.” Accordingly, considering the court’s instructions as

a whole, the court did not intimate to the jury what it believed the evidence to be.

      4. Cooper next contends that trial counsel was ineffective for failing to object

to the charge on inference of recent possession. We find this contention meritless.

      To prevail on a claim of ineffective assistance of counsel, a defendant
      must show that counsel’s performance was deficient and that the
      deficient performance so prejudiced the defendant that there is a
      reasonable likelihood that, but for counsel’s errors, the outcome of the
      trial would have been different. See Strickland v. Washington, 466 U. S.
      668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to
      meet his or her burden of proving either prong of the Strickland test, the
      reviewing court does not have to examine the other prong. In reviewing
      the trial court’s decision, we accept the trial court’s factual findings and

                                           9
      credibility determinations     unless    clearly   erroneous, but     we
      independently apply the legal principles to the facts. Furthermore, there
      is a strong presumption that the performance of counsel was within the
      wide range of reasonable professional lawyering, and we cannot reach
      a contrary conclusion unless defendant successfully rebuts the
      presumption by clear and convincing evidence. Judicial scrutiny of
      counsel’s performance must be highly deferential.


(Citations and punctuation omitted.) Littlejohn v. State, 320 Ga. App. 197, 205-206

(5) (739 SE2d 682) (2013).

      As explained in Division 2, Cooper’s contention regarding the language in the

trial court’s instruction on the inference of guilt related to recent possession is

meritless, and “[f]ailure to make a meritless or futile objection or motion cannot be

evidence of ineffective assistance.” (Citations omitted) Owens v. State, 271 Ga. App.

365, 370 (5) (609 SE2d 670) (2005). Accordingly, this assertion does not provide a

basis for finding Cooper’s trial counsel ineffective.

      5. We also find no merit in Cooper’s contention that the trial court erred in

charging on accomplice liability. He essentially asserts that the accomplice charge

was not supported by the evidence, because Odus, his co-defendant, testified at trial

and denied committing the crimes. Thus, Cooper maintains, because he did not



                                         10
testify, there is no evidence that he was an accomplice to the crime. We find no merit

to this argument.

      “To authorize a requested jury instruction, there need only be slight evidence

supporting the theory of the charge.” Hicks v. State, 287 Ga. 260, 262 (2) (695 SE2d

195) (2010); accord Scott v. State, 291 Ga. 156 (2) (728 SE2d 238) (2012); Webb v.

State, 284 Ga. 122 (4) (663 SE2d 690) (2008). It is a question of law whether the

evidence presented is sufficient to authorize the giving of a particular charge. Hicks,

287 Ga. at 262. Moreover,

      While there is [conflicting] evidence regarding precisely “who did what”
      . . . there is ample evidence to implicate [Cooper] either as a principal or
      as a party to the crimes. See OCGA § 16-2-20 (persons “concerned in
      the commission of a crime,” by way of intentionally aiding and abetting
      or intentionally advising, encouraging, or counseling another to commit
      such crime, may be charged with and convicted of commission of the
      crime); see also Hassel v. State, 294 Ga. 834 (1) (755 SE2d 134) (2014)
      (evidence regarding defendant’s presence at crime scene, motive, and
      conduct before and after crime was sufficient to establish guilt as an
      accomplice); Rush v. State, 294 Ga. 388, 389 (1) (754 SE2d 63) (2014)
      (“[p]resence, companionship, and conduct before and after an offense is
      committed are circumstances from which participation in the criminal
      act may be inferred”).


Babbage v. State, 296 Ga. 364, 366-367 (1) (768 SE2d 461) (2015).

                                          11
      “Where, as here, there is slight evidence supporting a finding that a witness

was an accomplice, the jury should be given proper guidance not only on how to

decide whether the witness was in fact an accomplice but also on the extent to which

it can rely on that witness’ testimony by itself to support a conviction.” Hamm v.

State, 294 Ga. 791, 796 (2) (756 SE2d 507) (2014). See Jones v. State, 268 Ga. 12,

14 (1) (483 SE2d 871) (1997) (“it is for jury to determine whether the witness is an

accomplice”) (citation and punctuation omitted). Accordingly, the trial court did not

err in charging the jury on accomplice.

      Judgment affirmed. McMillian and Mercier, JJ., concur.




                                          12
